The
Law
of
Piracy
The Law of Piracy
Alfred P. Rubin
Naval War College Press
Newport, Rhode Island
1988
Library of Congress Cataloging-in-Publication Data
Rubin, Alfred P.
The law of piracy.
(U.S. Naval War College international law studies; v. 63)
Bibliography: p.
Includes index.
1. Pirates. 2. Pirates — United States. 3. Pirates — Great
Britain. I. Title. II. Series.
JX4444.R83 1988 341.77 88-17962
DEDICATION
To Susanne, who put up with it all.
TABLE OF CONTENTS
FOREWORD xi
PREFACE xiii
I. THE ORIGINS 1
Introduction 1
The Greek and Roman Conception of "Piracy" 4
The Reorganization of the Renaissance 13
"Piracy" Enters Vernacular English as "Privateering" 13
"Piracy" Enters the Legal Vocabulary as "Outlawry" 18
The Legal Order and Outlawry 19
Positivist Theory; Law as a Support for Policy 19
Some Technicalities: Property Law and Privateering 21
Naturalist Theory: Law as a Moral Order Governing
Policy 26
Some Implications 30
English Municipal Law and Piracy in the Renaissance 32
Jurisdiction and Substance; Admiralty and Common Law 32
Admiralty Commissions and Common Law: The Statutes of
1535 and 1536 36
In Rem Property Adjudications 38
Outlawry, Crime and Licenses 40
Coke's Synthesis 44
Summary 48
Notes 50
II. THE EVOLUTION OF THE CONCEPT OF PIRACY IN
ENGLAND 66
English Law and International Law 66
Commissions: Privateers as "Pirates"; Positivism
Rampant and Naturalism Resurgent in the 1690s 69
English Commissions: Positive Grace v. Natural Justice 78
Animo Furandi and Hostes Humani Generis 82
Jurisdiction and Legal Interest 86
Naturalists v. Positivists (Again): Molloy v. Jenkins 86
The Courts 92
Jurisdiction 92
Commissions Become Evidentiary Instead of
Determinative 94
viii Contents
"Piracy" or "Felony" in English Law as Adopted in
American Courts 101
The Classical Publicists: Zouche to Bynkershoek 104
The "Law of Nations" 104
The Growth of Positive Law Concepts as an Implication of
National Sovereignty 105
The Classical English Synthesis: Blackstone and
Wooddeson 108
Notes 113
III. THE UNITED STATES OF AMERICA
AND THE LAW OF PIRACY 122
The Basic Framework 122
"Piracy" as a Municipal Law Crime in the United States 127
The Court System 127
The Substantive Law of 1790 128
The Definition 128
Jurisdiction 137
The Substantive Law of 1819 144
The Attempt to Avoid Problems of Definition, Jurisdiction
and Foreign Commissions 144
Substance Re-Examined 147
Jurisdiction Re-Examined 151
Foreign Commissions and Unrecognized Belligerents 154
The Statutes 154
The Early American Experience 156
The Latin American Wars for Independence 157
Evolution of the Labels 162
The Civil War of 1861-1865 174
The Later Practice 184
Summary and Conclusion 186
Notes 188
IV. BRITISH PRACTICE IN THE NINETEENTH
CENTURY 201
Eurocentrism and British Imperial Law 201
"Pirates" as Permanent Enemies in British Imperial Law 203
The Legal Rationale for Naval Action 203
The Bounty Legislation of 1825 Retroactive to 1820 204
The New Law Applied 206
The East India Company in the Persian Gulf 206
Contents ix
The British Navy in the Eastern Mediterranean Sea 211
The East India Company, the Navy and the Courts in
Southeast Asia 220
Politics and "Piracy" in Southeast Asia 220
Mohamed Saad; "Pirate" or "Patriot? 226
Lushington Unleashes the Navy's Naturalists 230
British Imperial Legal Policy and Real Public International Law 238
The British Change of Definition 238
Applying the New Definition 240
The Kwok-A-Sing Case 240
The Law Officers Retreat 242
The Empire Advances 245
The Selangor Incident 245
The Legal Tangle 249
Dropping the Legal Facade 254
The Limits of the British Imperial Law of Piracy 258
Introduction 258
The Huascar Incident 259
Conclusions 270
Notes 275
V. "PIRACY" IN THE TWENTIETH CENTURY 292
"Piracy" by Analogy 292
Rebels and War Criminals 292
Aircraft Hijacking 298
Attempts to Codify the International Law of Piracy 305
Introduction 305
The League of Nations Effort 305
The Harvard Research in International Law 308
Introduction 308
The Theory Behind the Harvard Draft 309
The Text of the Harvard Research Draft Convention 313
The Anglo-American Position 317
The Law of the Sea Codification of 1958 319
The International Law Commission Draft 319
"Piracy" Today 337
Notes 346
APPENDICES
I. English Statutes 359
LA Offences at Sea Act of 1536, 28 Henry VIII c. 15 359
x Contents
LB The Piracy Act of 1700, 11 & 12 William III c. 7 362
I.C The Bounty Act of 1825, 6 George IV c. 49 370
II. American Statutes 373
II. A 15th Cong., 2nd Sess., ch. 77, Piracy Act of 3 March
1819 with notes by Peters, 3 Stat. (1850) (510-514) 373
II. B 16th Cong., 1st Sess., ch. 113, Piracy Act of 15 May 1820,
3 Stat. 600-601 381
II. C 18 U.S.C. Sec. 1651-1661, United States Code (1982 ed.)
Vol. 7, pp. 323-325 383
III. CODIFCATIONS 386
III. A The Harvard Research Draft Articles on Piracy, 1932, 26
American Journal of International Law Special Supplement
743-747 (1932) 386
III.B The United Nations Convention on the Law of the Sea,
Montego Bay, 10 December 1982, U.N. Doc. A/CONF.
62/122, articles 100-107 391
ABBREVIATIONS 393
BIBLIOGRAPHY 397
INDEX 429
INDEX OF CASES 443
XI
FOREWORD
The study of International Law has been an important and integral part
of the curriculum at the Naval War College since its founding in 1884. This,
the sixty-third volume of the "Blue Book" series, continues a Naval War
College tradition begun in 1901 of publishing scholarly treatises and articles
that contribute to the development and understanding of International Law.
Professor Alfred P. Rubin of the Fletcher School of Law and Diplomacy
of Tufts University, the author of this volume, has contributed a work of
exceptional scholarship that will long be regarded as an authoritative
reference material not only with respect to the law of piracy, but to the
whole of international law. Professor Rubin's work is considered to be
informative, comprehensive, and provocative.
The opinions expressed in this volume are those of the author and are
not necessarily those of the United States Navy nor of the Naval War
College.
Ronald J. Kurth
Rear Admiral, U.S. Navy
President, Naval War College
xiii
THE LAW OF PIRACY
by
Alfred P. Rubin
PREFACE
This book began many years ago, when, as a student at the University
of Cambridge, looking into the legal rationalizations used by British leaders
to justify using gunboats to secure the remote fringes of their commerce,
I found that in the first three quarters of the 19th century in the Malay
Peninsula it was common to refer to the bands headed by young nobles as
"pirates." It is true that they robbed merchants, primarily Malay merchants,
in the waters of the Archipelago and the rivers of the Peninsula. But it is
also true that few of their depredations occurred on the high seas in the
nineteenth century British conception of the term, i.e., further than three
nautical miles from the nearest governed land; that the nobles had at least
the kindly acquiescence of the Sultans accepted by the British and the Malays
of the Peninsula as possessors of sovereign authority to grant privateering
licenses; and that "pirate hunting' ' expeditions by the British occasionally
hunted their prey ashore.
This use of the term "piracy" as a justification for military action seemed
to me inconsistent with its use in courts of law, and, indeed, as my research
progressed I found that there were cases in British courts in the Malay area
arising out of some incidents in which the courts and the naval authorities
disagreed as to what "piracy" meant. The results of this research were
published as parts of two books whose principal focus was elsewhere, and
an article included in the Grotian Society Papers 1968. Having completed my
studies of the legal rationalizations for European imperial adventures in the
Malay area, of which the "piracy "-suppressing justification was a significant
but not dominating part, I laid aside that work for other things.
My appointment in 1981 as Charles H. Stockton Professor of International
Law at the U.S. Naval War College, Newport, Rhode Island, gave me the
opportunity to return to the subject of "piracy" and I have happily done
so. It has been a fascinating legal challenge to disentangle the threads of
ancient, renaissance and modern municipal and international law and
politics, and to analyze how the current confusion regarding the law of
"piracy" arose and is maintained. Among the very many works on various
aspects of the subject there are scholarly analyses that seem to have been
overwhelmed by the mass of less thoughtful writing and adversary briefs
for definitions of "piracy" that would serve parochial political or legal ends
xiv Preface
at the expense oflegal integrity or objectivity. What seems to have happened
is not a mere evolution oflegal and political thought, but the use of a legal
word to justify political action that is justifiable neither by the law nor by
wise policy. In a few cases, the use of the word "piracy" to justify a quick
"solution" through military action has even obscured the availability of
sounder, more persuasive and better based legal rationales — to the cost of
the political leaders who might have done better had they known more about
the law. But that tale belongs to the text itself.
I must thank the administration and staff of the Naval War College at
Newport, Rhode Island, for unfailing support, particularly the three Staff
Judges Advocate, Dave Albrecht, Dennis Mandsager and Jim Brush, and
the staff of the Naval War College Library. The administrators of The
Fletcher School of Law & Diplomacy allowed me a sabbatical year at the
Naval War College to conduct the research; they were very understanding
of the continuing pulls on my time and energy. Finally, the staffs of the
Widener, Langdell and International Legal Studies Libraries at Harvard
University were most helpful when I had trouble finding obscure works that
no other library in the world would have had at all.
Special acknowledgment must also be made for the help of Donald
Lippincott, a student at The Fletcher School of Law & Diplomacy, whose
knowledge of classical Greek was indispensible; Guive Mirfendereski, also
a student at The Fletcher School, whose work on the history of the Persian
Gulf was more than useful; Professor Martin Glassner of Southern
Connecticut State College, whose eagle eye and strategic presence made
it possible to keep up on some important recent developments; Professor
Edward Gordon of Albany Law School and The Fletcher School of Law
& Diplomacy, who referred me to an important article I had overlooked;
Frank Uhlig, Jr., Publisher of the Naval War College Press, for finding maps
and pictures and editorial help; Professor George Bunn, a successor to the
Stockton Chair at the Naval War College, whose comments and suggestions,
particularly regarding the organization of the first chapter, Daniel
Webster's contributions to the American tradition and the final conclusions
were most valuable and perceptive; and Robert Laske, Editor of the Naval
War College Review, and his sterling associates from the Publications Division
who did all those things necessary to bring this work from manuscript to
printing. Several others have read parts of the book and given
encouragement that helped me to get through the interminable middle
stages. To all I am grateful.
Of course, all responsibility for errors of scholarship, as well as for
misstatements, confusions and the difficulties of reading my infelicitous
prose, is mine alone, alas.
Alfred P. Rubin
I
The Origins
"Pirate .... Middle English from Latin pirata, from Greek peirates, 'attacker,' from
peiran, to attempt, attack, from peira, an attempt .... From Indo-European root per-." 5
"per- 5 .... To try, risk;" from which come the modern English words: fear, peril,
experience, expert, empire, and pirate.
American Heritage Dictionary of the English
Language (William Morris, ed.) (1969), pp. 998, 1534.
The word "piracy " is used in modern English in many different ways,
from a half-admiring description of the shrewd practices of an
assertive businessman cutting the corners of morality but strictly within the
law, to a highly technical legal word of art related to some crimes for which
people have been hanged. In between lie uses that relate to unrecognized
rebels, naval vessels acting beyond their authority, naval vessels acting within
their national commissions to interfere with peaceful commerce in ways the
international legal order will not tolerate, and many other shades of meaning.
The most cursory examination of learned literature, treaty articles and
national statutes shows at least six different meanings: (1) A vernacular usage
with no direct legal implications; (2) An international law meaning related to
unrecognized states or recognized states whose governments are not
considered to be empowered at international law to authorize the sorts of
public activity that is questioned, like the Barbary States of about 1600-1830,
the Malay Sultanates of about 1800-1880, and the Persian Gulf Sheikhdoms of
about 1820-1830; (3) An international law meaning related to unrecognized
belligerency, like Confederate States commerce raiders and privateers during
the American Civil War of 1861-65 in the eyes of the Federal Government of
the United States; (4) An international law meaning related to the private acts
of foreigners against other foreigners in circumstances making criminal
jurisdiction by a third state acceptable to the international community despite
the absence of the usual territorial or nationality links that are normally
required to justify the extension abroad of national criminal jurisdiction; (5)
Various special international law meanings derived from particular treaty
negotiations; and (6) Various municipal (i.e., national, domestic) law
meanings defined by the statutes and practices of individual states. It is
possible to elaborate this list to take account of ambiguous or inconsistent
2 The Law of Piracy
state practice and diplomatic correspondence, special technical interpreta-
tions within the learned international legal writings and different states'
positions as to particular incidents, and other traditional modes of legal
analysis.
All of these uses of the word "piracy" have been argued from time to time
to rest on classical writings and precedents. In the days leading up to the
Westphalian settlement of Europe in 1648, citations to Greek and Latin
sources were a major element of legal argumentation. Those renaissance legal
arguments and the municipal law of the European sea powers, particularly
England, purported to rest on Roman law and usage. Thus, to understand
fully the modern meanings of the term "piracy" it is necessary first to
examine the Greek and Latin writings and Roman usages.
Time changes the meaning of words, and it is an error in scholarship to
attribute to ancient or even not very ancient authors the full range of
implication that a word carries in current usage. An amusing example appears
in the 14th century Middle English poem Sir Gawain and the Green Knight where
the Green Knight, entering King Arthur's great dining hall, asks, "Where is
. . . the governour of this gyng?" and it can be shown by analyzing the uses of
the word "governour" and "gyng" ("gang") in other medieval works that
the modern cockney connotation of jocular contempt that might be implied
from the context of the Green Knight's speech is simply not there. 1
When, in 1811, Sir T.S. Raffles, the British Lieutenant Governor of Java,
wrote to Lord Minto, the Governor-General of India, that "It is unfortunately
the practice in some of the Malay States rather to encourage the young nobles
of high rank, especially those of the Rajah's own extraction, whose
maintenance would fall otherwise upon the Rajah himself, to subsist
themselves by piratical practices" 2 he was using the word in a non-legal sense
insofar as the attitudes of the Malays was being explained. At the same time,
from its European legal implications he concluded that suppressive activities
by the British Navy might be justifiable as a matter of international law. He
seems to have been conscious of the two meanings of the word when he
advised that the British in the first instance, rather than bearing the burden
themselves of sweeping the "pirates" from the seas, should "oblige every
Rajah to refuse to every description of pirates . . . any sort of assistance or
protection in his own territories." 3 This suggestion, with much legal
difficulty, became translated into British policy and assertions of interna-
tional law over a period of sixty or seventy years.
In the light of this and similar persistent confusions, before embarking on
an analysis of the precise meaning of the word "piracy" as used in ancient
texts it might be useful to set forth a few of the many instances in which the
word or its derivatives has been used by translators to reflect their own ideas
as to when it is appropriate to use it despite the fact that the word does not
appear in any form in the text being translated. Since so much nineteenth and
Origins 3
twentieth century writing about "piracy" cites ancient usages that in fact
exist only in the nineteenth and twentieth century purported translations, but
not in the ancient texts, it might be possible to clear away some common
misconceptions of our own time, when some citations to earlier scholars,
which in turn rest on still earlier scholarly citations, which in turn appear to
rest on non-legal translations of words that have no connection with the
ancient conception of "piracy," seem to have become conventional wisdom;
i.e., seem to be accepted as correctly reflecting the ancient concepts merely
because so often repeated in scholarly writing.
Coleman Phillipson, whose analysis of classical conceptions of interna-
tional law is justly famous to the degree that it seems to have almost cut off
later scholarship, wrote: "In the Homeric age the practice [of "piracy"] was
looked upon as a creditable . . . means of enrichment." 4 Without disputing
Phillipson's point, which will be examined more closely below, it is
interesting to check his citations. These include Homer's Iliad, 5 and Odyssey, 6
and Thucydides's History of the Peloponnesian War. 7 In fact, in none of these
places cited by Phillipson does the word "peirato" or any of its derivatives
appear in the original Greek. 8 Instead, the original Greek uses derivatives of
the word "diapertho" 9 or the word "/ew." 10 Indeed, even if the word "peirato"
did appear in the places cited in Homer, it would not indicate a clear usage of
the word, since, aside from some clearly inappropriate contexts, what most
commonly appears is a formula of words that seems to have been a customary
greeting addressed to strangers:
Is it on some business, or do ye wander at random over the sea, even as 'pirates,' who
wander hazarding their lives and bring evil to men of other lands? 11
This particular formula, which does not include the word "peirato" or any of
its derivatives in the original Greek, is repeated in many places, including
Hesiod 12 and Thucydides. 13 And yet it is the very Thucydides passage not
using the word "peirato" or any of its derivatives that is mentioned by at least
one very eminent twentieth century scholar as evidence that "piracy" in the
modern sense was accepted as legitimate in ancient Greece. 14 Obviously, it
was not "piracy" that was legitimate, but something else, labeled with a
different word, that may or may not have been analogous to the modern legal
conception of "piracy."
It may be significant that the more or less standard glossary, Autenrieth's
Homeric Dictionary, defines "peiran . . . -ato" as "test, attack, make trial of, put
to proof, contend with" etc., but does not record any usage in Homer that
would correspond with a sense of illegality or even roving to seize the
property of others regardless of legality. 15
Similarly, in Herodotus 's history of the Persian War, the passage most
frequently cited as mentioning "piracy" does not use the Greek word or any
of its derivatives, and that passage is translated properly as saying merely the
coming of "Bronze men of the sea" was predicted by an oracle. 16
4 The Law of Piracy
Perhaps the most egregious anomaly of translation is in the frequent
citation to an historical episode in which the citizens of the "polis" of
Halonnesos refused to receive their property back from Philip of Macedon as
a gift, but insisted that they had never lost title since the capture had been by
"pirates, " who lack the legal power to alter rights to title in property. But the
Greek original does not contain the word "peirato" or any of its derivatives. 17
As for Roman sources, 18 again some of the most often cited writings
purportedly defining the classical conception of "piracy" do not use the word
in either its Greek or Latin ("pirata") form. For example, Cicero, in his second
speech Against Verres, does not mention "pirata" in the passage cited time and
again by renaissance and later scholars as one of the sources of the law of
"piracy." The word he uses is "praedones." 19 And Livy's translator gives a
totally distorted impression of the legal relations between the Great
Pompey's son, Sextus Pompey, and Octavian Caesar, building on the
distorted picture painted by the not wholly impartial Livy himself, in this
passage:
When Sextus Pompey again made the sea dangerous through acts of piracy [latrociniis],
and did not maintain the peace to which he had agreed, Caesar undertook the inevitable
war against him and fought two drawn naval battles. 20
In the original Latin the word "pirata" or its derivatives does not appear. 21
There are other anomalies in this passage that point out the need for great
circumspection in drawing far-reaching legal conclusions from the use of
Latin words in ancient sources. The word "hello" (war; belligerency) is used
to describe the conflict between two claimants to some public authority in
Rome in the turmoil following Julius Caesar's assassination and before
Octavian achieved full mastery of the political system and became Caesar
Augustus. But if the Roman law of war applied, as the word would seem to
indicate, then the fundamental Roman conception of "war" as a legal status
with legal implications would have applied in the absence of declaration. And
it would have applied against those who commit "latrociniis" acts. This path of
analysis leads to complications of significant magnitude and in the light o{
other writings seems wholly misguided. It is very likely that Livy was using
the word "latrociniis" perjoratively and not legally, and the word "hello" to
mean "struggle" or some similar non-legal idea, rather than war. Since these
distinctions are vital to a careful legal analysis, it may be concluded that not
only translations, but even original texts must be read very carefully before
legal implications are drawn from them.
The Greek and Roman Conception of "Piracy"
Thucydides's description of political life in the Aegean area rests not only
on the poetic formula of greeting, but on other passages in Homer 22 and, no
Origins 5
doubt, oral and perhaps lost written traditions familiar enough to his
generation that citation was not felt to be necessary by him. Modern
scholarship sees this proud description as evidence not only of a political
system accepting the organized use of force by small bands without pejorative
implications or any deep analysis o£ the political structure of the bands
themselves, 23 but also of a far-reaching economic order. During the 10th and
9th centuries B.C., 24 such wars and raids reflected the struggle for survival
and economic gain by combinations of families and small communities as part
of a larger economic system in which "Forcible seizure followed by
distribution in this fashion, was one way to acquire metal or other goods from
an outside source." 25 The seizures did not necessarily involve essential
supplies, and the concepts of justifiable behavior apparently extended to
permit these raids by Greeks against Greeks and non-Greeks alike merely for
gain. Given the state o^ politics and economics in the area, such raids were
probably not the principal means of commerce, and it has been suggested that
gift-exchanges were the main mechanism for economic transfers. 26 The
system might bear some similarity for purposes of this study with the Viking
political and economic system of Scandinavia in the 9th to 11th centuries
A.D. 27
The earliest time when the surviving literature in Greek uses the word
peirato and its derivatives to describe anybody appears to be about 140 B.C.,
and it is to some specific political and economic communities of the Eastern
Mediterranean littoral that the word was applied. Polybius, whose Histories is
the principal source of much of our knowledge of the rise of the Roman
Republic, uses the word peiraton in a passage translated by W.R. Paton in a
way avoiding the confusions wrought by too frequent use of the English word
"pirate," but creating an equivalent confusion. He refers to: "Euripidas with
two companies of Eleans together with his freebooters [peiraton] and
mercenaries . . . " 28 Just what "freebooter" means in that context seems very
unclear. But what does seem clear is that the word "peirato" and its derivatives
was being applied not to brigands or others outside the legal order, but to
small communities including fighting men who were regarded as capable of
forming alliances and participating in wars as they were fought between
acknowledged political leaders within the legal order of the time.
Diodorus Siculus, writing about 60 B.C., uses the word in connection with
events of 304 B.C.:
[Amyntas] . . . suddenly confronted some pirates [peiratais] who had been sent out by
Demetrias . . . the Rhodians took the ships with . . . Timocles, the chief pirate
[archipeirates]. 29
The usage of Livy, writing in Latin 29 B.C. -14 A.D., is similar. In
describing events of 190 B.C., he refers to Nicander, whom he calls a pirate
chief (archipirata), fighting with five ships as an ally of Rome. 30 In referring to
the "war" of 68-67 B.C. by which Pompey the Great cleared the Eastern
6 The Law of Piracy
Mediterranean of Cilician commerce-raiding communities, 31 Livy not only
refers to the struggle as "war" and describes it as if it were legally indeed a
"war" at Roman law, but he refers to its ending by a negotiated surrender
under which the "pirates" agreed to conform to more settled ways:
Gnaeus Pompeius was ordered by a law passed by the popular assembly to pursue the
pirates, who had cut off the traffic in grain. Within forty days he had cleared them from
all the seas. He brought the war [belloque] against them to an end in Cilicia, received the
surrender of the pirates and gave them land and cities. 32
Finally, the Greek Plutarch, writing in about 100 A.D., paints such a clear
picture of the "pirates" to which Livy referred in his brief synopsis of the
"war" of Pompey to end their control of commerce in the Eastern
Mediterranean, that it seems worth setting out in some detail. Throughout
this translation, wherever the word "pirate" is used, the word "peirato" or
one of its derivatives is used in the original Greek,
The power of the pirates [peiratiki] had its seat in Cilicia [in Asia Minor, where they
flourished during the wars of Rome against Mithridates [88-85, 83-81 , 74 B.C.] . . . until
they no longer attacked navigators only, but also laid waste islands and maritime cities.
And presently men whose wealth gave them power, and whose lineage was illustrious,
and those who laid claim to superior intelligence, began to embark on piratical [peiratike]
craft and share their enterprises, feeling that the occupation brought them a certain
reputation and distinction . . . Their flutes and stringed instruments and drinking bouts
along every coast, their seizures o( persons in high command, and their ransoming of
captured cities, were a disgrace to the Roman supremacy [hegemonias]. 33
To complete the picture of political societies conforming to the archaic
Eastern Mediterranean pattern, Plutarch mentions the unique religious
worship of the "pirates," whose rites centered on the town of Olympus in
southern Asia Minor. 34 This combination of settled communities, religious
rites, musical tradition, and the conception of the "pirates" that what they
did was entirely proper, is what brought them into conflict with Rome. It is
hard to see how they were considered outlaws or violators of any law other
than the Roman conception of hegemony; a conception obviously not shared
by non-Romans at that time, 35 and possibly not by many Romans of the
pre-Augustan age that Plutarch was writing about almost a century after the
reign of Augustus. On the other hand, Plutarch seems to have accepted the
idea that such political societies, no matter how conforming to a traditional
pattern, were an anachronism beyond the orderly system within which Rome
had become accustomed to operate. The word "peirato" and its derivatives
seems to be applied to traditional Eastern Mediterranean societies operating
in ways that had been accepted as legitimate for at least a millenium. But the
conception of Roman order, the idea that Roman hegemony was a matter of
right, of law, had begun to make the continued existence of "pirate"
communities unacceptable even if no justification for distinguishing those
"pirate" communities from their less assertive neighbors could be found
Origins 7
directly in Roman or general international law as it was applied between
Rome and other political communities of the Eastern Mediterranean.
The procedures for the "war against the Pirates" adopted by the Roman
Senate were extraordinary and reflect these legal doubts as to the precise
status of the Roman hegemony and its legal basis. A law was passed by the
Republic's Senate in 68 B.C. under which Pompey the Great was
commissioned to subdue them not as a naval commander (the word "admiral"
had not yet been invented, but the Loeb Classical Library's translator of
Plutarch uses it here) but as a king deriving his sovereign powers from the
Roman donation, thus opposing the "pirates' ' sovereignty with Roman
sovereignty and making of the piratical society something like rebels.
Plutarch makes it clear that this procedure was shocking: Pompey was
commissioned by the Roman Senate to take the seas away from the "pirates
[peiraton]" by giving him "not an admiralty, but an out-and-out monarchy and
irresponsible [sic: "unbridled" might be a better translation] power over all
men." 36 His authority was decreed to extend to land areas within 400 furlongs
of the sea, thus to include the entire territory of the Aegean Islands, Crete and
the Dodecanese and enough of the land of Asia Minor to include all their
villages and Olympus, the "pirates' " religious center.
Plutarch's description of the course of the war, and the negotiation for
peace, seems to confirm this impression, that Rome treated the "pirates" not
as outlaws but as enemies to be met in war and defeated. After dispersing the
"pirates' " fleet,
Some of the pirate bands [peiratorion] that were still roving at large begged for mercy, and
since he [Pompey] treated them humanely, and after seizing their ships and persons did
them no further harm, the rest became hopeful of mercy too, and . . . betook themselves
to Pompey with their wives and children, and surrendered to him. All these he spared,
and it was chiefly by their aid that he tracked down, seized, and punished those who
were still lurking in concealment because conscious of unpardonable crimes. 37
But the most numerous and powerful had bestowed their families and treasures and
useless folk in forts and strong citadels near the Taurus mountains, while they
themselves manned their ships and awaited Pompey 's attack near the promontory of
Coracesium in Cilicia; here they were defeated in a battle and then besieged. At last,
however, they . . . surrendered themselves, together with their cities [poleis] and islands
of which they were in control . . . The men themselves, who were more than 20,000 in
number, he [Pompey] did not once think of putting to death . . . [but] determined to
transfer the men from the sea to land ... to till the ground. Some of them, therefore,
were received and incorporated into the small and half-deserted cities of Cilicia ... To
most of them, however, he gave as a residence Dyme in Achaea, which was then bereft
of men and had much good land. 38
Pompey 's monarchical position under the commission issued by the Roman
Senate received something of a comeuppance shortly after, when Metellus,
another Roman general, was with rather less mercy wiping out Cilician
"pirate" villages in Crete. Since all of Crete lay within 400 furlongs of the sea
8 The Law of Piracy
Pompey apparently regarded this as an encroachment on his authority and
sent one of his lieutenants, Lucius Octavius, to join with the "pirates"
fighting against Metellus. Metellus won, "captured the pirates [peiratas] and
punished them, and then sent Octavius away . . ." 39 There is no further
reference to Pompey 's commission in this context.
It seems clear that the word "pirate" was used by Plutarch to classify
communities with which Pompey felt it was appropriate not only to go to war
and conclude a peace treaty, but even to send military assistance to, as to an
ally, when they accepted the Senate's ordinance subjecting them to the law of
Roman "hegemony."
On the other hand, it appears that there was a change in Roman concepts
underway. To label a group "pirates" was not merely to classify their way of
life within a legal order as we still use the word "Viking" to evoke a way of
life legitimate within the harsh legal order of the middle ages. By the time
Plutarch wrote, there was an implication of impropriety to that way of life. It
had nothing to do with political motivation or criminality even under the law
of Rome as applied in the Empire or allied areas. It dealt instead with the place
of an antiquated way of life in a new commercial and political order that
could not countenance interference with trade in the Mediterranean Sea. It
was not bound to "piratical" acts on the "high seas," but to a conception of
"piratical" villages forming a society [poleis] on land which refused to accept
Roman supremacy. Relations with the "pirates" were relations of war, not of
policing the internal or imperial Roman law; the results of Roman victory
were the normal results of a victorious war at that time and in that place. 40
"War" to the Roman jurists was not merely a condition of fact with people
of one village or religious worship killing or enslaving people of another
village or divine descent. War was regarded as a legal status even if no active
fighting was occurring, and since victory or defeat in war had such enormous
consequences for the belligerents and their families, reflecting the vitality of
the vivifying force given by the tribe's or community's "God" or totemiclife
source to some eponymous ancestor or founder, the ceremonies involved in
the creation of that status were essentially religious. The religious element of
the status of war was not a mere prayer for victory, but reflected much deeper
concerns for the continuance of the race. Virgil's epic poem, Aeneid, telling
the mythology surrounding the founding of the Roman tradition in Italy by
Aeneas, a son of the defeated King Priam fleeing from the sack of Troy, is
unmistakably, in this sense, a religious work.
The interplay between religion and the secular law between "nations" or
"races" or god-protected communities and tribes, is evident from the
narration of the great literary (but not always accurate) historian Livy, who
grew to manhood during the days of Julius Caesar, and wrote his history of
Rome with access to sacred documents during the early days of the reign of
Augustus. He details from the oldest treaty in the holy archives (c. 670 B.C.)
Origins 9
the treaty-making procedures of Roman tradition, setting out some of the
formulas of words and symbolic acts, involving a freshly plucked holy plant,
the sacrifice of a pig, and metrical ritual (which in part, alas, he fails to record
as "not worth the trouble of quoting"). Through these rituals the titulary
gods on both sides (in this case the Romans and the Albans) were called upon
separately to witness the commitment of the current holders of the life of each
god's own community to the sanctity of the pledge. 41 In this particular
incident, as reported by Livy, the "war" between the Romans and Albans was
put into the hands of three representatives from each side, chosen for their
martial vigor and thus presumably reflecting the vigor of the holy life of each
community as well as its mere secular martial prowess. The Romans won in a
close contest, only one champion for each side surviving, and Horatius for
Rome ultimately killing his Alban antagonist as the two armies stood by and
watched. The two sides then buried their dead and Alba accepted Roman rule
submitting their entire treasure and lives to the mercy of the Roman god
represented by the Roman political organization. 42
Livy also details the ceremony followed by the Romans even into his own
time when "war" was to be begun. In Livy's version, the ceremony for a
formal declaration of war was adopted from the religious rites of the ancient
Roman tribe of the Aequicolae and taken over by priests (fetials) representing
the entire Roman community. It is worth repeating in its entirety for an
understanding of the importance of the ceremony and the significance of
Cicero's argument in Livy's own time 43 that "war" against "pirates" could be
begun without it:
When the envoy arrives at the frontier of the state from which satisfaction is sought, he
covers his head with a woolen cap and says: Hear me, Jupiter! 'Hear me, land of
So-and-so! Hear me, O righteousness! I am the accredited spokesman of the Roman
people. I come as their envoy in the name of justice and religion, and ask credence for my
words.' The particular demands follow and the envoy, calling Jupiter to witness,
proceeds: 'If my demand for the restitution of those men or those goods be contrary to
religion and justice, then never let me be a citizen of my country.' [Presumably so that
the results of impiety will not be visited on the entire community.] The formula, with
only minor changes, is repeated when the envoy crosses the frontier, to the first man he
subsequently meets, when he passes through the gate of the town, and when he enters the
public square. If his demand is refused, after thirty-three days . . . war is declared in the
following form: 'Hear, Jupiter; hear Janus Quirinus; hear, all ye gods in heaven, on
earth, and under the earth: I call you to witness that the people of So-and-so are unjust
and refuse reparation . . .' The envoy then returns to Rome for consultation. The
formula in which the king asked the opinion of the elders was approximately this: Of the
goods, or suits, or causes, concerning which the representative of the Roman people has
made demands of the representative of . . . [So-and-so], which goods or suits or causes
they have failed to restore or settle, or satisfy . . .: speak, what think you?' The person
thus first addressed replied: 'I hold that those things be sought by means of just and
righteous war. Thus I give my vote and my consent.' The same question was put to the
others in rotation, and if a majority voted in favour, war was agreed upon. The fetial
thereupon proceeded to the enemy frontier carrying a spear with a head either of iron or
10 The Law of Piracy
hardened wood, and in the presence of not less than three men of military age made the
following proclamation: 'Whereas the peoples of [So-and-so] . . . have committed acts
and offences against the Roman people, and whereas the Roman people have
commanded that there be war with [them], and the Senate of the Roman people has
ordained, consented, and voted that there be war with [them]: I therefore, and the
Roman people hereby declare and make war on [them].' The formal declaration made,
the spear was thrown across the frontier. 44
These forms, or at least their underlying concepts, were employed against not
only the South Italian peoples with whom the Romans shared a similar
culture, but also against the North Italian Gauls 45 and presumably everybody
else with whom it was religiously conceived that a struggle on earth reflected
competing demands on a divine source of life symbolized by tribal or
community gods. 46
The most commonly cited authority for the original Roman legal
conception of "piracy" adopted as the source for modern European views of
international law on the subject is Marcus Tullius Cicero. Cicero, an active
lawyer and politican contemporary with Julius Caesar, killed apparently by
order of Marc Antony in 43 B.C. in the aftermath of the murder of Julius, 47 has
been cited inappropriately often, 48 but did in fact mention "pirates [pirata]" in
one passage that evidences the changing legal conceptions of the generation
that gave Pompey the legal power to subdue them by simply asserting a
superior legal power over the territory and seas in which their outmoded
culture survived. In that passage he merely denies any legal obligation to keep
an oath to "pirates" on the ground that by being the enemies [hostes] of all
communities, they are not subject to the law of the universal society that
makes oaths binding between different communities. 49 There are many
reasons for regarding this statement as not indicating any considered legal
opinion. Hugo Grotius himself, the great Dutch scholar and jurist o£
international law of the first half of the 17th century, criticized this passage on
the ground that the observance of an oath is owed to God, not to the person
receiving the benefit of the oath. 50 Other factors not usually considered by
those citing this passage of Cicero as evidence that "pirates" in his day were
common criminals 51 include the fact that the passage appears in a work on
moral duties, not law; as Cicero himself noted, the two do not always
coincide. 52 Moreover, bearing in mind Cicero's political situation in 44 B.C.
when this was written, and the episode in Julius Caesar's life involving the
same Cilician "pirates," 53 and the peculiar legal authority given to Cicero's
sometimes friend Pompey coupled with Pompey 's use of that authority
against Metellus and the fact that Pompey was by now dead and his twenty-
five year old treaty with the "pirates" could be discarded without personally
insulting him, and some notion of the complexity of Cicero's thinking can be
appreciated. Indeed, the "pirates" that had been suppressed by Pompey in 67
B.C. had revived by the time Cicero was writing this, and Marc Antony was
believed to have mobilized them against Brutus and Cassius. Cicero's
Origins 11
condemnation of the "pirates" seems thus less a statement of a legal opinion
than a slap at his enemy, Antony. 54
Perhaps the best evidence of the Roman jurists' actual conception of
"piracy" lies in the collection of undated opinions appearing in Justinian's
Digest of 534 A.D. 55 There appears to be in fact only one passage in the Digest
in which the word "pirata" or its derivatives appears. In the section on the law
of property dealing with the devolution of property rights in case of a
wrongful taking, the opinion of Paulus (c. 230 A.D.) is given: "Persons who
have been captured by pirates or robbers remain [legally] free." 56
Two other opinions have been so often cited by so many scholars as
applying to "pirates" that it seems important to set them out here, even
though by failing to use the word "pirata" or any of its derivatives they seem
to demonstrate the opposite of the lesson for which they so often are cited.
Ulpian (d. 223 A.D.) wrote:
Enemies are those against whom the Roman people have publicly declared war, or who
themselves have declared war against the Roman people; others are called robbers or
brigands. Therefore, anyone who is captured by robbers, does not become their slave,
nor has any need of the right of postliminium. He, however, who has been taken by the
enemy, for instance, by the Germans or Parthians, becomes their slave, and recovers his
former condition by right of postliminium} 1
And Pomponius (c. 130 A.D.):
Those are enemies who declare war against us, or against whom we publicly declare
war; others are robbers or brigands. 58
The concept of property rights needing reassessment after a legal capture,
and that in some circumstances captives would become free and property
would revert to its former owner on the conclusion of a war or on recapture,
was an important one. 59 It becomes much more important for purposes of this
study later when the European-based international law of naval prize makes
it significant that the captor be classified as a person able to change legal title
or not. It was by reading the word "capti" in the passage ascribed to Paulus, to
apply to goods and not merely to persons, and by classifying "pirates" as
covered by Ulpian and Pomponius as if they were brigands [latrones] or
robbers [praedones], that this legal conclusion was reached. But that analysis
belongs to a later chapter. 60
One other implication of these passages seems significant. By attaching the
word "hostes [enemies]" to those against whom legal war [bellum] was waged,
and refusing to attach the word to police action against brigands and robbers
[latrones et praedones], an entirely different light is shed on the phrase "common
enemies of all mankind [hostes humani generis]" 61 as a paraphrase of its original,
Ciceronian, meaning. If this analysis is correct, and Cicero was speaking as
the technical lawyer later scholars have assumed in drawing their implications
from this reference to "pirates," then what he really seems to have meant was
that "pirates," are not robbers or brigands but legal enemies with the sole
12 The Law of Piracy
exception regarding promises to them that Grotius rightly criticises as
illogical and which is incorrect as history.
It may be concluded that the fundamental Greek and Roman conception of
"piracy" distinguished between robbers, who were criminals at Roman law,
and communities called "piratical" which were political societies of the
Eastern Mediterranean, pursuing an economic and political course which
accepted the legitimacy of seizing the goods and persons of strangers without
the religious and formal ceremonies the Romans felt were legally and
religiously necessary to begin a war. Nonetheless, the Romans treated them as
capable of going to "war" — indeed as in a permanent state of "war" with all
people except those with whom they had concluded an alliance. There is some
evidence that the Romans refused to extend the technical law of postliminium
to them, perhaps on the ground that since they never ceased to be at war,
there was no opportunity to determine the title to captured goods and no need
to recognize title in those deriving rights from belligerent capture; the goods
remained subject to recapture by anybody, and the rights of postliminium
would be applicable against the recaptor, just as in war goods recaptured
before the end of hostilities reverted to their original owner subject only to
payment of costs attributable directly to the recapturing action. 62 The legal
rationalization found by the Roman Senate for suppressing the communities
of "pirates" was not an asserted Roman right to police the seas (although
Plutarch seems to have thought that rationale would have been better than the
one actually used by the Senate), but the quite different assertion of a Roman
right to territorial as well as maritime jurisdiction in the Eastern Mediter-
ranean. To examine the full implications of this popular Roman view on the
course of Roman, and, indeed, world history, is far beyond the limits of this
study. For present purposes it seems enough to point out that "piracy" to the
Romans was a descriptive noun for the practices of a particular landbased
Eastern Mediterranean people whose views of law and intercommunity
relations appear to have reflected a millenium-long tradition that had become
an obstacle to Roman trade and inconsistent with Roman views of the world
order under Roman hegemony. The word did not imply criminality under any
legal system, Roman or law of nations. It was applied to a fully organized
society with families and a particular religious order that seems to have been
not shockingly different from the social organization and religious orders of
many other peoples of that time and place.
It is not beyond conjecture that something of this pattern was in the mind of
Sir T.S. Raffles when he called "piratical" some of the Malay sultanates with
which he had to deal in 1811. 63
None of this is meant to imply that non-/?o/*s-connected marauding at sea,
what today might (or might not) be called "piracy" as a result of later legal
developments, was permissable at Roman internal law, Roman imperial law
relating to hegemonial rights, if any, or international law as perceived by
Origins 13
Roman statesmen. But those acts were called something else, and to analyze
the full range of legal results that flowed from using those other labels would
involve a discussion beyond the limits of this study. To Europeans of later
times whose education included familiarity with Greek and Latin writings in
which the words "peirato" and "pirata" or their derivatives were used, some
hint of the earlier meaning remained despite later legal uses of the word in
forms contemporary with the later Europeans in special legal contexts. And
that classical meaning did not carry the implication of criminality or violation
of general international law that other meanings carried; it justified a kind of
political action, perhaps, and also perhaps had some legal implication in
general international law particularly as it related to the laws of war and
postliminium. But these are factors better discussed later on.
The Reorganization of the Renaissance
"Piracy" Enters Vernacular English as "Privateering. " For a thousand years
after Justinian the word "pirate" appears to have remained buried in the
Greek and Latin texts familiar to learned monks but not considered
significant to soldiers and statesmen. Norse raiders of the 9th to 11th centuries
A.D. following a career that seems in many ways analogous to that of the
"pirates" of the time of Cicero and Pompey were not usually called "pirates"
in English or Latin in contemporary documents, but were called by the names
they gave themselves, "Danes" or "Vikings." Ranulf Higdon (or Higden)
wrote a general history of the world in Latin in the first half of the 14th
century, referred to by a Greek abbreviation for its long title as the
Polychronicon, that received some popularity for a century or so after its first
production in manuscript. In it he drew the obvious analogy, calling the
Vikings "Dani piratae. "John de Trevisa, a don at Oxford 1362-1379, translated
Higdon into his native Middle English, translating the word "piratae" as "see
theves [sea thieves]." The earliest use of the word "pirate" in English found
by the compilers of the Oxford English Dictionary is in the second quarter of
the 15th century. 64 That early usage seems to have no legal connotation.
Meantime, in the Mediterranean Sea area, the old Greek and Roman usages
seem to have survived. Merchant ships that passed near enough to fishing or
small agricultural villages of the Mediterranean to be safely attacked by the
inhabitants of those communities were, from time to time, attacked. The
dangers of trade and travel during the rise of Venice, the Crusades, the
establishment of the Ottoman Empire and the dominance of Suleiman the
Magnificent in 16th century Turkey and the Eastern Mediterranean gener-
ally, and the establishment of stable Muslim rule in the maghrebi towns of
Algiers, Salee (Rabat), Tripoli and Tunis did not evoke images of "piracy " as
a violation of any law.
14 The Law of Piracy
Later writers have used the word "piracy," with its modern legal and
romantic connotations, in wholly misleading ways. As with later references
to "piracy" attributed to classical authors, the most eminent modern writers
have used the word to refer to a host of activities in the Mediterranean of the
16th and 17th centuries that may or may not have been considered "piracy,"
or even wrongful under any legal system. The situation is summed up
admirably by Fernand Braudel, a French historian who himself uses the word
"piraterie" in the most confusingly vague and unhistorical ways:
In the 16th century [as in Homeric times] the sea was filled with pirates, and pirates
perhaps even more cruel than those of earlier days. Commerce raiding [la course] takes a
mask, disguises itself as semi-official warfare, with letters of marque . . .
I have repeatedly said that piracy was the child of the Mediterranean. True enough, but
historians have often lost sight of the generality of the practice while focusing their
attention and reproofs only on the Barbary corsairs. Their fate, which was grand,
overshadows the rest. Everything else is deformed. That which is called "piracy " when
done by the Barbary corsairs is called heroic, pure crusading spirit when done by the
Knights of Malta, and the equally ferocious Knights of St. Stephen, based at Pisa under
the protection of Cosimo dei Medici. 65
Thus, while the picture painted by Braudel 66 is brilliantly clear and
imaginative, the fact that he uses the word "pirate" to include licensed
warfare at sea should not be forgotten. He describes the Mediterranean of the
16th century as featuring: "Sea-pirates . . . aided and abetted by powerful
towns and cities. Pirates on land, bandits, received regular backing from
nobles." 67 But the picture is actually, legally, one of lively and dangerous
commerce and conflicting claims to authority that might be called an
authority to tax nearby shipping lanes with capture of the vessel, confiscation
of its cargo, and the enslavement of the crew the penalty for tax evasion.
Another legal basis for "piracy" as the word is used by Braudel was the
medieval law of war: "One of the most profitable ventures of Christian
pirates in the Levant became the search of Venetian, Ragusan or Marseillais
vessels for Jewish merchandise, . . . likening it to contraband, a convenient
pretext for the arbitrary confiscation of goods." 68 The "Christian pirates"
referred to here seem to have been the Knights of Malta, a crusading Order
asserting sovereign rights to govern land and to participate in lawful war. 69
For theft to be profitable, "stolen" goods must have a market. Where the
market is in the control of a "government," a person or body to whom is
conceded the legal power to change title to property, and a "taking" is
authorized by the proprietor of that market, it is difficult to conceive of
"stealing" as distinct from "lawful capture "or "taxation. "By the end of the
sixteenth century such markets were flourishing in Valetta (Malta), Leghorn
(Livorno, Italy) and Algiers. Their legal basis was thus the law of the
Christian Knights of Malta, Cosimo de' Medici, and the Muslim Governor
(under Turkish control) of Algiers. 70
Origins 15
For the pattern of commerce to be profitable the goods must continue to
flow; the taxation or belligerent interdiction (or robbery) must not be so
burdensome as to drive trade away; even risk-sharing through insurance must be
managed in such a way that the risk does not become so great as to be
uninsurable. 71 Examining this economic reality and the undeniable vitality of
Mediterranean trade in the period 1580-1648, when captures at sea were most
vigorously condemned by European writers as intolerable, even if legal, it can
be conjectured that the forcible exchange of goods and slave-taking was in fact a
tolerable part of the economic system of the Mediterranean at that period.
Indeed, even a century later, the risk of being taken as a slave in the waters near
Algiers and Morocco was significant, and the fate of the slave once taken was
not always as grim as might be assumed by a 20th century reader. 72
England was already a major sea power by the time the Spanish Armada
was defeated in 1588, soon to dominate large areas of the sea and express
through the application of force its sentiments as to the proper order of
commerce and private property.
John Chamberlain, whose letters written 1597 to 1626 constitute a major
source of insight into the trade and politics of that period in England,
apparently uses the word "piracies" as a synonym for "privateering under
license" in a letter to Dudley Carleton dated 31 January 1599: "Upon the
Duke of Florence's embargo and complaint of our piracies, here is order upon
pain of death that no prizes be taken in the Levant seas." 73 A similar usage
appears thirteen years later when Chamberlain refers to unlicensed takings as
a matter of state authority bearing no apparent relationship to abstract
notions of morality or international law: "Many of our pirates are come home
upon their pardon for life and goods, but the greater part stand still aloof in
Ireland, because they are not offered the same conditions, but only life . . . " 74
The same usage was applied to Algiers and Tunis, whose licensed or
unlicensed prize-takers were called "pirates" while routine treaty negotia-
tions were conducted with the rulers of those places.
Sir Thomas Roe had taken great pains and thought he had done a chef d'oeuvre in
concluding a truce or peace for our merchants with the pirates of Algiers and Tunis. But
he is in danger to be disavowed and all this labor lost (howsoever it comes about) and we
left to the mercy of those miscreants who have already seven or eight hundred of our
able mariners, among whom many gunners and men of best service at sea, who by this
treaty should have been delivered. 75
About the beginning of the 17th century "pirates" began to take the place
of "Spaniards" as the villains in English popular ballads. A ballad published in
1609 condemning John Ward and a Dutchman named Simon Danseker for
their villainies under Barbary license illustrates the changing mood:
Gallants, you must understand,
Captain Ward of England,
A pyrate and a rover on the sea,
16 The Law of Piracy
late a simple fisherman
In the merry town of Feversham,
Grows famous in the world now every day.
Men of his own country
He still abuses vilely;
Some back to back are cast into the waves;
Some are hewn in pieces small,
Some are shot against a wall;
A slender number of their lives he saves.
At Tunis in Barbary
Now he buildeth stately
A gallant palace and a royal place,
Decked with delights most trim,
Fitter for a prince than him,
To which at last will prove to his disgrace.
There is not any Kingdom,
In Turkey or in Christendom
But by these pyrates [Ward and Danseker] have
received loss;
Merchant-men of every land
Do daily in great danger stand,
And fear do much the ocean main to cross
But their cursed villanies,
And their bloody pyracies,
Are chiefly bent against our Christian friends;
Some Christians so delight in evils
That they become the sons of divels,
And for the same have many shameful ends.
London's Elizabeth
Of late these rovers taken hath,
A ship well laden with rich merchandize;
The nimble Pearl and Charity,
All ships of gallant bravery,
Are by these pyrates made a lawful prize.
The ballad ends with three more verses describing a quarrel between Ward
and Danseker, and seeing in their separation, Ward to stay near Tunis and
Danseker to hover near "Argier" (Algiers), the hand of God which will lead
to their overthrow. 76
The realities reflected on this ballad led to a diplomatic expedition to
Algiers in 1621 under Sir Robert Mansell, which failed, 77 and an unsuccessful
attempt by Parliament to ransom 1500 Christian captives in 1624. Popular
indignation over the plight of the captives is reflected in a frankly polemical
ballad of that year:
Origins 17
Not many moones have from their silver bowes
Shot light through all the world, since those sworne foes
To God and all good men . . . [sic] that hell-borne crew
Of Pirates (to whome there's no villanies new),
Those halfe-Turkes and halfe Christians, who now ride
Like sea-gods (on rough billows in their pride),
Those renegadoes, who (their Christ denying)
Are worse than Turkes . . . 78
In 1637, 3-400 souls were taken from Salee by the English ship Rainborow,
apparently peacefully. 79
The English conception of when the word "pirate" was appropriate in
international relations at this period had not come to be stably reflected in a
specific legal context. 80 As is apparent from the last quoted line of the ballad
of Ward and Danseker, at least in the popular mind there was no distinction
between privateering and "piracy;" a "pyrate" could make "lawful prize" of
a captured vessel. It is possible, although not entirely clear, that the word was
a pejorative used for privateers of any nationality who captured English
vessels. The word appears to have slipped so quickly into the general
pejorative vocabulary that whatever legal precision it might have derived
from classical sources eroded by the late 16th century.
Some clues as to the evolving meaning of the word, and some insight into
the pattern of governance and trade that gave rise to the changes in meaning,
are implicit in contemporary documents relating to the East India Company's
business in Southeast Asia. There are mentions, for example, of English and
Dutch ships in 1622, during one of the very brief periods of cooperation
between the merchants of the two nations, keeping company "for fear of
pirates" near Java, but it is unclear precisely who or where the "pirates"
were. 81 Similarly there is mention in December 1623 in a communication
from the Council at Batavia to the English merchants at Jambi (in Sumatra)
that it is deemed "dangerous to send one ship for England alone, because of
the abundance of pirates lurking in all places," 82 and a few days later the same
Council referred to the need for homeward-bound ships to be prepared
"against the invasion of that cursed crew of pirates." 83 Again, it is unclear
precisely who or where the "pirates" were, but they were probably not the
Dutch; there is a reference in instructions given to an English trading voyage
to Bantam (in Java) by the "President and Council of Defence" in Batavia on
16 August 1623 to the need to defend against an assault by the Dutch "as from
pirates," 84 apparently distinguishing between the two threats.
King James I, convinced that the East India Company was withholding
from the Admiralty its tenth share of prize money taken under license by the
Company as "reprizals" (apparently against Portugal), is reported to have
called the Company itself "pirates." 85 In the Court Minutes of the East India
Company the same transaction is explained:
18 The Law of Piracy
. . . Mr. Governor replied that upon receipt of the release promised for the time past and
the warrant and direction for the future they were ready to pay the money. His
Majesty's answer was that this was to give them leave to be pirates; the answer was that
the Company delighted neither in blood nor rapine, and therefore humbly besought his
Majesty would be a means that peace might be between the English and Portugals ... or
else that his Majesty would explain in what cases the English might defend themselves
by offending others if there were cause. 86
It seems likely that two different conceptions of "piracy " were involved, one
asserted by the Company referred to "blood" and "rapine" and seems to
relate to English criminal law as it might be applied generically to robbery
within the jurisdiction of the Admiral; the other implied by King James I
related to any unlicensed taking. It is tempting in this to see a Stuart King
seeking a legal basis for classifying as criminals those who merely failed to
submit to total centralized control over their activities, and a private
Company seeking to restrict royal control to what was permitted by
Parliament in its criminal statutes. But, as shall be seen below, the dispute
probably reflects differing conceptions of law on a much deeper level.
It does seem to be concluded by all who have examined the facts of
Mediterranean commerce in the 16th and 17th centuries that licensed
"privateering" of many European powers, including England, made trade
not only in the Mediterranean but also in the North Atlantic and elsewhere,
hazardous for all traders of any nationality, and that the four Barbary
communities of Tunis, Tripoli, Algiers and Salee joined in this practice in the
early 17th century. 87 The word "piracy" was used increasingly around the
turn of the 17th century to refer to privateering, possibly by analogy to the
classical "pirates" of Cilicia in the Eastern Mediterranean, but the word was
assuming a more specific meaning related to unlicensed "privateering" as the
century progressed.
"Piracy" Enters the Legal Vocabulary as "Outlawry," The professional
international law scholars of the 16th and 17th century left in their writings
evidence of this evolution of meaning, and how the word "piracy" acquired
technical international legal meanings reflecting the popular culture.
The North Italian Pierino Belli, publishing his major work on military
subjects and war in 1563, rests on the medieval post-glossator Baldus Ubaldus
(1327-1400) as authority for interpreting Cicero's and Plutarch's writings to
mean that while war should not be begun without a declaration, "it is
customary to make an exception in the case of pirates [piratae], since they are
both technically and in fact already at war; for people whose hand is against
every man should expect a like return from all men, and it should be
permissible for any one to attack them." 88 He distinguishes "pirates,"
towards whom the laws of war apply, from persons whom the Pope or Holy
Roman Emperor have branded as public enemies; public enemies, but not
Origins 19
"pirates," are termed "outlaws" whom even persons without soldiers'
licenses may kill. 89 But Belli makes a major departure from precedent when
repeating Cicero's condemnation of Marc Antony's agreement with the
Cilician "pirates" in 44 B.C. 90 as if applicable in all contexts and disregarding
any evidence that treaties with the Cilician "pirates" had in fact been
concluded and observed by Pompey as well as by Marc Antony. Indeed, the
inconsistency between the two passages in Belli, one affirming the
applicability of the law of war to relations with "pirates" and the other
asserting a rule of law that would make the termination of that war
impossible except by the complete annihilation of the "pirates," seems to
reflect some confusion of thought.
Balthasar de Ayala, a native of Antwerp (now part of Belgium, then part of
the provinces of the Habsburg monarchy ruled from Spain) writing in 1581
carried the confusion a step further. By reading the passages of Justinian's Digest
relating to captivity and postliminium as if all references to "brigands"
("latrones") applied equally to "pirates," he actually denied the status of lawful
enemy ("hostes") to pirates in apparent disregard of all the ancient writings:
For the same reason, the laws of war and of captivity and of postliminy, which apply to
enemies, do not apply to rebels, any more than they apply to pirates [piratis] and robbers
(these not being included in the term "enemy"). Our meaning is that these persons
themselves can not proceed under the laws of war and so, e.g., they do not acquire the
ownership of what they capture, this only being admitted in the case of enemies; but all
the modes of stress known to the laws of war may be employed against them, even more
than in the case of enemies, for the rebel and the robber merit severer reprobation than
an enemy who is carrying on a regular and just war and their condition ought not to be
better than his. 91
Nor is it clear why he denied the status of lawful enemy to rebels, although
legally the case for criminality was easier to make regarding "rebels" than
"pirates" in 1581, since rebellion was obviously a violation of the law of the
monarch against whom it was aimed, and was committed by people within
the "allegiance," of that monarch, while "pirates" were beyond the reach of
municipal law under normal feudal concepts. The possibility that rebels
might achieve an independent status under international law before the
former monarch accepts that negation of his monarchy's internal law, and
thus become best viewed as entitled to the protection international law gives
to lawful belligerents even if their precise status is doubtful, was not
considered by Ayala. Perhaps his views were influenced by loyalty to the
Habsburg monarchy during the violent days of the rise of the Dutch
Republic. 92
The Legal Order and Outlawry
Positivist Theory: Law as a Support for Policy. The first writer o{
lasting eminence to convert the confusions of the time to legal principle, to
argue that the label "pirate" carries with it unmistakably the meaning of
20 The Law of Piracy
outlawry and that what "pirates" do is forbidden by international law, was
Alberico Gentili. Born in Italy in 1552, but forced by the Inquisition to leave
when his father, and apparently he himself, converted to the Protestant
religion in the 1570s, Gentili settled in England in 1580 and was appointed to a
teaching post at the University of Oxford in 1581. He was made Regius
Professor of Civil Law there in 1587 and published the first volume of his
Commentaries on the Law of War in 1588. Two other volumes followed in 1589,
and all three were reissued together in 1598. He appeared with Royal
permission as the advocate for Spain in several cases before the Royal Council
Chamber in London, dying in 1608 full of honors. 93
After defining the legal state of war ("Bellum est") as a "just [lawful?] and
public contest of arms [publicorum armorum iusta contentio]," 94 and asserting on
the basis of quotations from Justinian's Digest that only Princes have the legal
power to resort to war, 95 Gentili devotes an entire chapter to demonstrating
by legal logic that "pirates" cannot be public enemies; cannot wage "war." 96
"A state of war cannot exist with pirates and robbers, in the opinion of
Pomponius and Ulpian [cumpiratis & latrunculis helium non est. vt ita Pomponius, &
Ulpianus definierunt]." 97 He goes on: "Pirates are the common enemies of all
mankind, and therefore Cicero says that the laws of war cannot apply to
them." 98 But the passage Gentili immediately quotes from Cicero does not
mention "pirata" or any of its derivatives or the law of war; it is a passage
relating only to promises given to "praedones." 99
It is, of course, possible to quote the entire chapter, but it is not the function
of this study to subject to critical analysis the influential scholarship of others
except as necessary to trace the evolution and legal meaning of the concept of
"piracy" in modern international law. Thus, without further examples, it is
possible to conclude that Gentili in 1588 took an argumentative position,
supported with an advocate's brief, that "piracy" was not a matter of
permanent war with communities pursuing violent tax collections at sea or
basing part of their economy on booty seized from their neighbors. "Piracy"
to Gentili was apparently any taking of foreign life or property not
authorized by a sovereign, synonymous with brigandage or robbery on land,
i.e., that his conception of the criminal law implications of the words praedones
and latrones or latrunculi in Roman law, which he does not analyze, applied
equally to "pirates" without analysis.
It seems clear that the license of an established sovereign was the key to his
thinking. The chapter concludes with a famous example illustrating precisely
that:
But what are we to think about those Frenchmen who were captured by the Spaniards in
the last war with Portugal and were not treated as lawful enemies: They were treated as
pirates [piratae], since they served Antonio, who had been driven from the whole
kingdom and never recognized as king by the Spaniards. But history itself proves that
they were not pirates [piratas] and I say this because of no argument derived from the
number and quality of the men and ships, but from the letters of their king which they
Origins 21
exhibited; and it was that king whom they served, not Antonio, although this was
especially for the interest of Antonio: a consideration, however, which did not affect
their status. 100
The implications of Gentili's position were great. If it were generally
accepted, whatever the weaknesses of the appeal to classical writings in
support of it, that all takings were in some sense "criminal" unless authorized
by a person whose legal power to issue such an authorization were
acknowledged, no degree of political organization or goal could make a
"rebel" into a lawful combatant or require the application of the laws of war
to the struggle against the rebel army. A tool of enormous power was placed
in the hands of "sovereigns." The political struggle to unify France and to
engorge the royal power of the Stuart kings of England would be helped.
Moreover, each "sovereign" would seem to be accorded the legal power, by
"recognizing" anybody's legal status needed to license privateers or naval
commanders (or withholding that "recognition"), to determine what legal
regime would be applied to any struggle between the "sovereign" and an
enemy of uncertain status. The Barbary states could be rendered "piratical"
by simply withholding recognition of his governmental position from a new
Dey or "recognizing" a rival, thus depriving the one not liked of the power to
issue the Turkish equivalent of letters of marque and reprisal. Gentili's
approach was clearly attractive to him as an advocate for Spain in England
1605-1608. 101
Many of the cases in which Gentili was concerned involved "postliminy"
in its renaissance form, the determination of title to goods and status of
persons taken by a foreign sovereign, his agent, or a "privateer" (or "pirate")
possibly acting in excess of his foreign license. While it is not necessary for
purposes of this study to set out the complexities of the Roman law of
postliminium, a few words as to its growing importance in renaissance
Europe seem needed.
Some Technicalities: Property Law and Privateering. "Postliminium"
was the Roman law word of art to denote that branch of the law which dealt
with rights of property during wartime. Questions involved primarily the
status of persons (slave or free) captured in war and brought to the territory of
a neutral before the war ended; would it be unneutral of the third country to
deny the property right of the captor in his slave? If so, could the captor sell
the slave and pass title to a neutral? And if that neutral sold the slave to a buyer
from his original country, what then; would the captive soldier become a
slave in his own country? The analogy to captured goods and vessels seems
clear.
By late medieval times, the legal status of war, retaining some of its
religious background, no longer applied to many lawful private takings. It
was, in fact, in an effort to avoid bringing about a state of war between
princes that letters of marque and reprisal were issued to private persons
22 The Law of Piracy
authorizing them to recapture from foreigners goods that had been
wrongfully taken by those foreigners. There were no judicial proceedings
prior to the issuance of the letters, thus there could be, and presumably were,
serious questions about the "wrongfulness" of the original taking and the
propriety of the supposed "recapture." Moreover, it was rarely possible to
assure that the goods "recaptured" were identical with the goods originally
taken, and it was but a small step to issue letters of marque and reprisal
("licentia marcandi" in 1295) for the taking not necessarily of the original goods,
but of any goods up to the value of the original goods; and not necessarily
from the original taker, but from his fellow-citizen. 102
Little help in determining the precise meaning and origin of the system
exists in etymology. "Reprisal" comes from Latin via French and means
"re-taking." It is possible to speculate that the original sense in law involved
simply an authority to recapture goods wrongfully taken by another.
"Marque" seems to have an obscure origin and some relationship to the
technical old Provengal law of pledge. It has no English usage other than in
"Letters of Marque" and almost always the words "marque and reprisal"
appear together. On the other hand, as noted above, the phrase "licentia
marcandi, ' ' clearly meaning a letter authorizing a taking in the sense of ' 'letters
of marque and reprisal," appears in a document of 1295, and the phrase
"marquandi sue gagiandi" in an English legal document of 1293, predating by
some sixty years the earliest reference to "/a lei de Mark &de represailles" found
by the compilers of the Oxford English Dictionary in an English statute of
1354. The word "marquandi" seems to relate not to seizures and pledges but to
merchantability; the legal power to pass title to goods. 103
These shifts in the system of private "reprisal" and equivalent capture for
sale to satisfy the original claim in money terms by the end of the 16th century
had failed of their purpose to avoid war between the sovereigns over private
claims. The issuance of such letters had begun to be regarded in Northern
Europe as necessarily involving the centralizing monarchies in the attack on
foreigners whom it was the legal duty of their own sovereigns to protect.
Thus, the issuance of letters of marque and reprisal was becoming itself a
belligerent act, justifiable only by the law of war. The old forms persisted,
and it was apparently felt not necessary that the war be declared before the
letters were issued, while it was felt to be necessary to apply the laws of war
to determine the lawfulness of the capture. Thus the license, the letters, held
by the captor were felt to be subject to examination and the legal status of the
foreign "sovereign" issuing an equivalent license could be called into
question. The question would arise whenever goods or a ship purchased in
Algiers or Tunis arrived in England or Holland, for example, and some
former owner identified it as his. This was often done in the case of a ship;
Admiralty proceedings to determine rights in a vessel became the typical
forum for hearing questions of this sort. Thus, while "prize courts" in any
Origins 23
country 104 might deal with wartime captures, and the Royal Council
Chamber in England dealt with various claims involving the dignity of the
Crown in the early 17th century, ordinary Admiralty courts in England dealt
with a variety of cases arising out of peacetime capture under letters of
marque and reprisal.
The proceedings in Admiralty, Royal Chamber and Prize were proceedings
before national courts; i.e., only the sovereign could authorize an adjudication
of property rights within his domain, so all the courts there, whatever their
title or form, derived from him their authority to adjudicate title to property.
But the substantive law they applied was necessarily a law that had to be
acceptable both at home and, if the new title were to be of any use to the
winner of the case, abroad. Thus rationales or, probably more accurately,
justifications based on legal logic and precedent for the determinations of the
tribunal, had to be found in terms that would seem persuasive to the tribunals
erected by foreign sovereigns dealing with the same or similar cases. This
pattern of logic and the appeal to precedent based on incidents not tied to
local circumstances and legislation might be best described as the application
of "international law" to the case, or of a special branch of municipal law, or
even as a sort of conflict of laws situation where the municipal law refers the
tribunal to a foreign system of laws (in this case "international law") which in
turn refers the questions of title to a foreign law (perhaps the law of Tunis in
the case of a Tunisian capture followed by legal proceedings equivalent to
Prize or Admiralty or Royal Chamber proceedings in Tunis). Which set of
concepts was used would depend on the complexity of the mind of the analyst
and the consistency of the particular legal model with other legal principles
important to the tribunal.
Gentili, as the Advocate of Spanish interests in England at the highest legal
levels, apparently phrased his pleadings, when he could, as pleadings on behalf
of English merchants deriving title through Spanish claimants, and seems
frequently to have omitted the Spanish middle step. Thus, where he argued on
behalf of English merchants against other English merchants, he was actually
doing his proper jobof representing Spanish interests. Where he could, he also
described the interests of the other side as foreign, even where it seems likely
that they were as deeply (or as shallowly) rooted in England as his own side's
were.
In the first cases in his book of pleadings, Gentili argued that the Roman
writers and precedents created a law of "postliminy" that should be applied
in the Royal Chamber to permit lawful title to pass to a captor only as a result
of lawful capture during time of war, and then only after the capture is
perfected by the captive people, goods or vessel being brought to the territory
controlled by the capturing person's sovereign and the capture declared good
there. He noted, as if merely in passing, that "To Pirates and wild beasts no
territory offers safety [Piratis, & feris territorium nullum praebet securitateni]'
24 The Law of Piracy
because "Pirates are the enemies of all men [Piratae sunt hostes omnium]" 105 and
cannot perfect their captures any more than wild beasts can. In a case
involving a purchase by English merchants directly from "pirates" in a
market under the supervision of the treasury officials of the "King of
Barbary, " Gentili argued that the Roman law forbidding pirates to alter title
(he did not distinguish between title to persons and title to goods) applied in
Barbary as it applied in Turkey, the territorial descendant of the Eastern
Roman Empire of which Justinian was Emperor. That law, he argued,
nullified the purported legal effects of the English purchase even though there
was some official Barbary connection with the sale. As an additional reason in
policy for adopting the legal pattern he proposed, he argued that a contrary
result would give to "pirates" a "very convenient place, which is quite close
to the Spanish lines of trade and occupied by English merchants, where they
may distribute their booty among their confederates. Does this make for
trade?" 106
On the other side, when attempting to support title derived by purchase in
Tunis from "pirates" against the Venetian original owners, he argued that
there are exceptions to the absolute rules. Under one such exception at
Roman law the payer of a ransom to pirates could hold the persons ransomed
until repaid the amount of the ransom; rights of possession might thus be
passed by pirates even if full rights of property could not. 107 It is not clear just
who the "pirates" were (they were asserted to be English) or what they did or
if they had any letters from a foreign prince. Since they were not parties to the
case, and Gentili 's argument did not rest on asserting the legitimacy of their
acts (which might have been conformable to international law but forbidden
by English municipal law under some special definition of "piracy") 108 these
issues were not presented.
Finally, in a case involving English possessors of "pirate ' ' property deriving
their title through purchase at Tunis, with Gentili arguing for the English
possessors, he was forced to depart still further from his theoretical position
that the Barbary states were "piratical" when they licensed takings without
going to war. Admitting that his former argument 109 went the other way, he
tried to distinguish the cases on the ground that the involvement of the
Turkish Treasury ("fiscus") in the first case was merely a matter of form
while in this case the involvement was direct. But major stress is placed on a
more solid policy ground: That those who are safe under the law of the place
of the transaction must be safe in their rights in England also. This is a basic
principle of conflict of laws and necessary for any country involved in
international trade. It thus indicates a limit to the theoretical discretion of
lawyers and statesmen to attach legal labels to suit the particular interest of
the moment. Gentili went even further: "Our countrymen have their trade
with Tunis, Algeria, and many another state taken from them by this claim of
the Venetians that those states are nothing but piratical retreats and that there
Origins 25
is none in them but pirates and that the very magistrates in them are pirates
too." 110 This frankly political argument for attaching the label "state" to the
Barbary organizations, and "government" to their officials, is consistent
with Gentili's basic idea: That legal labels are attached not on the basis of
facts, but on the basis of their legal and political results by a policy choice.
Thus Gentili's "recognition" approach had its limits. Reality and the needs
of commerce exposed it as not a rule for judgment by a third party or scholar,
but as a tool of advocacy attractive primarily to flexible-minded lawyers and
statesmen seeking a justification for actions that might not stand moral
scrutiny.
It was not even clear that the Gentili approach would help "legitimate"
monarchs dispose of rebels as "pirates. " Not only was its legal basis shaky, but
it was not clear politically that treating a dynastic claimant as a "pirate" chief
would have any significant effect in the world of affairs. It was not clear, as it
is not clear today, that the legal results of loss in war are less harsh on the
vanquished than defeat as "pirates." Hanging for treason, for political
convenience or influence, or for crime differ as far as the victim is concerned
only to the degree that some sense of dignity might attach more easily to the
political prisoner than to the common criminal. Yet, it has been common in all
ages that political prisoners suffer far more than common criminals in times of
stress. And if the alternative to fighting on in a hopeless cause was to be death
on a criminal's scaffold, it is not clear that calling "piracy " what others might
call "privateering licensed by an unrecognized sovereign" would always
shorten the struggle or make victory easier for the established sovereign.
Thus the particular example does not seem to support the principle Gentili
argued to underlie it.
There are other implications to Gentili's approach. His approach to "law"
seems dominated by the ephemora of policy. If "piracy" is criminal, by what
law? Apparently, by giving to each sovereign the power by "recognition" or
"non-recognition" to classify belligerent behavior as "piracy" when engaged
in by licensees of a foreign government or of a political movement whose
status could be denied, the privateers or soldiers of that government or
movement could be subjected not to international law, but to the domestic
("municipal," to use the usual word of art) criminal law of the "non-
recognizing" sovereign. In theory, Gentili's approach, based on an advocate's
twist to Roman municipal law, reached the same position as was condemned
by Plutarch when considering the authority the Senate had given Pompey to
suppress the Cilician "pirates" in 68 B.C. Now any sovereign could extend
his municipal law to the high seas, and possibly even to foreign land, by
authorizing his Admiral or General or other delegate to wipe out the
"pirates" there. Clearly, this broad authority would not survive the politics
of Europe, where the extension of one state's municipal law to the land
claimed by another would result either in a system of competing empires and
26 The Law of Piracy
"war" unmodified by the humanitarian and chivalrous law of war that was
generally acknowledged in Europe as necessary, or in the acknowledgment
that a European sovereign of sufficient political power and a claim to
authority along traditional lines could not be properly denied "recognition"
as such. But outside of Europe, where the competition for empire among
European sovereigns and their subjects was becoming intense, the claims of
non-European rulers to the legal authority of a European sovereign could be
denied without those implications. And if the struggle grew too difficult to
manage or the non-European too strong to ignore as a political actor or too
adept at finding European allies who would "recognize" his legal capacity to
license soldiers and privateers, the European power that had overextended
itself by abusing the legal tools Gentili would place in its control could simply
withdraw for a while to reconsider the politics and law of its position. 111
The vistas opened by Gentili 's discovery in the ancient Roman law relating
to latrones and praedones of a pattern of rules that could justify the most extreme
action against non-European political societies, and against internal forces
resisting the move towards centralized control in the monarchies and
bureaucracies of European expansion, were immense and very attractive to
the rising merchant classes.
Naturalist Theory: Law as a Moral Order Governing Policy. Gentili's
approach was not universally adopted by scholars. Hugo Grotius (Huigh de
Groot) was a Dutch prodigy whose reformulation of the basic conceptions of
the law that governs relations among states was so influential that he became
known as the father of modern international law. Born in 1583, he began
University studies at Leyden eleven years later, received his Doctorate at
fifteen from the University of Orleans while accompanying Johan van
Oldenbarnevelt on a diplomatic mission, and was greeted on that occasion by
King Henri IV as "The miracle of Holland." 112 The first edition of his
masterwork, On the Law of War and Peace, was published in France in 1625 and
incorporates writings dating back to 1604. Later editions with his own
corrections in them appeared in 1631, 1632, 1642 and 1646, the last being
published posthumously. 113 His active life included government service in
many capacities, including Ambassador from Queen Christina of Sweden to
France in 1634-1645, 114 and the 1646 edition of On the Law of War and Peace
incorporates not only vast classical scholarship and literary precision, but
distills the experience of an active statesman deeply involved in the political
struggles of his time.
Without mentioning Gentili by name, Grotius took issue with him on at
least two vital points: (1) His classical scholarship, which Grotius corrected in
large part; and (2) his emphasis on the power of an established sovereign
through non-recognition to place an active political community within the
legal classification "pirate. " Most importantly, by describing some character-
istics of "pirates," Grotius implied a view of the legal order which permits an
Origins 27
objective classification; he indirectly created a definition of "pirate"
quite different from the Gentili definition and equally influential in the
long run.
As to the disagreements, Grotius addressed the same preliminary question
that Gentili addressed as to whether "war" was a fitting legal classification
for all armed contentions. Quoting Pomponius and Ulpian among others,
Grotius came to no sweeping conclusions regarding "pirates" on the basis of
their opinions. Instead, he turned to a more direct analysis of the character-
istics of a society before it should be denominated "piratical," asserting that
the label properly fits only those who are banded together for wrongdoing
but does not include societies formed for other reasons even if also
committing illegal acts. 115
Moreover, a commonwealth or state to Grotius did not immediately cease
to be such if it commited an illegality, even as a body; and a gathering of
pirates and brigands was not a state, even if they did perhaps mutually
maintain a sort of equality. The reason, according to Grotius, is that pirates
and brigands are banded together for wrongdoing; the members of a state,
even if at times they are not free from crime, nevertheless have been united
for the enjoyment of rights, and they do render justice to foreigners. 116 The
problem comes in practice when trying to distinguish a "piratical"
community from a wrong-doing state. Comparing Ulpian 's conclusions
about captives not losing their liberty if taken by brigands 117 with the
willingness of Ulpian to allow lawful capture to German marauding tribes on
land as described in the works of Caesar and Tacitus, 118 and comparing the
celebration of a Roman "Triumph" at the end of the "war" with Illyrian
indiscriminate sea-borne marauders with the refusal of Rome to order a
Triumph to end Pompey's acknowledged war with the Cilician "pirates," 119
Grotius simply reiterated his view that these legally vital distinctions which,
after all, determine rights to potentially large amounts of captured property 120
and the liberty of real people, rest solely on the criminal purpose of the
marauders' association. 121
This basis for discriminating between "piratical" and non-piratical
marauding communities in the classical literature seems insupportable. There
is no evidence that the "peiraton" of Plutarch and Polybius, with their villages,
religious observances, alliances, etc., were banded together for the purpose of
plundering their neighbors any more than were the Germanic tribes or
Illyrians. Moreover, Grotius himself saw that the distinction could not
survive close legal scrutiny or the need politically to take full account of
marauding societies no matter what the purpose of their original union, once
their activities and degree of organization and their political power passed a
certain point. He argued that a "transformation [mutatio]" may take place
with regard to individual chieftains of brigand bands [praedonum ducibus] who
become "lawful chiefs [justi duces]" in some cases, 122 and also to whole
28 The Law of Piracy
communities by mere evolution. 123 But, instead of reconsidering his definition
Grotius immediately passed on to other things. 124
In short, Grotius's conception of when the word "pirate" would fit as a
legal word of art seems to focus not on recognition or the derivation of
authority from some acknowledged prince, but from facts directly: The word
would fit robber bands on sea or land; it would not fit the Barbary states or
other complete communities, whose primary purpose of association is lawful,
i.e., defense, raising families, making war. The legal results that flow from
attaching the word seem vague indeed, since Grotius would allow oaths and
promises to "pirates" to be kept and legation to be maintained. The only
really significant passage then is the one offhandedly expanding the Justinian
Digest's rule regarding the impossibility of a piratical capture changing the
personal status of the captive, to the very important area of general
postliminium — the disposition after recovery of goods previously captured
by pirates.
Even in this last regard, postliminy, Grotius was not certain that its rules
and exceptions had any application to his time. The expansion of organized
political societies in peaceful contact with each other had, in his optimistic
view, made the Roman law of postliminy obsolete: A lawful capture in war
followed by prize proceedings would legally change title to captured goods;
an unlawful capture in war or the lack of a legal proceeding similar to prize
court proceedings in which the various claimants to the goods would have an
opportunity to dispute the lawfulness of the capture, the contraband nature of
the goods and their actual ownership and destination, would not change the
title, and the loser could reclaim his goods if he could in fact recover them. A
lawful capture outside of war he regarded as impossible.
But what, then, about seizures by the Barbary corsairs? Were those
"states" in a permanent status of war with the states of Europe? Could their
licensees' seizures and their magistrates' legal procedures confer title on the
corsairs and thus on the European merchants who eventually bought the
goods? Or were they "pirates" who, by the ancient Roman law, could not get
title to goods however elaborate their legal proceedings? Or were they
"states" not at war whose depredations could give them some rights of
possession, but with regard to whom the law of postliminy should be revived
to clarify precisely what those rights were and against whom they could be
asserted? Grotius reported without comment a judgment of the highest court
in Paris delivered while he was writing (presumably shortly before 1625):
The decision held that goods which had belonged to French citizens, and had been
captured by the Algerians, a people accustomed in their maritime depredations to attack
all others, had changed ownership by the law of war, and therefore, when recaptured by
others, became the property of those who had recovered them. 125
Despite Grotius's seeming to doubt the legal strength or practical wisdom of
the Paris decision, and bearing in mind that his merely recording it added
Origins 29
greatly to its weight in those days when there were no formal court reports
and a necessarily different concept of stare decisis, (i.e., the bindingness of
common law decisions on later courts) from the current concept, the
inclusion of this judgment in his book may indicate Grotius's own uneasiness
with the classifications that his logic and moral perception of the legal order
had led him to. Of course, if there were no moral content to the law but only
form, the decision was clearly correct: Algiers met the criteria of statehood
by Grotius's own definitions, and the procedures of legal title transfer by the
law of Algiers were not questioned. Moreover, presumably both the former
owner and the owner deriving title through the sale in Algiers were innocent
of the taking and certainty in the law seems always to have been more
important for practical men of affairs and merchants than its conformity to an
abstract ideal of morality; a decision against Algiers would have had to come
in the form of a decision against a merchant who presumably had his insurance
or other 17th century risk-sharing arrangement to fall back on. It is only the
moral feeling that such takings seemed more like robbery than like war or tax
enforcement that seemed bothersome, and that sense of wrong came from an
analogy to the municipal law of robbery that seems misplaced in an age when
privateering was the normal way to recover the loss due to the acts of
foreigners abroad. Perhaps there was an undercurrent of yearning for
Empire, the imposition of Dutch order on the world, or at least on the
non-European part of it. Perhaps it was a deeper sense of order felt
increasingly as the excitement of trade and travel combined with classical
learning began to stir European scholars. But this is speculation.
The practical diplomat's position expressed by implication throughout De
Jure Belli ac Pads, that facts and the needs of politics and moral order dictate the
legal classifications that must be attached to situations, contrasts strongly
with Gentili's position that lawyers and politicians can apply the labels best
suited to their legal and political needs by a simple exercise of will. Under
Grotius's analysis, rebels at a fairly early stage, when their independent
existence at least as a community capable of belligerency could be objectively
determined, must be treated as a legal entity exercising belligerent rights
under international law. That position, of course, suited very well the
position of the Netherlands rebelling from Spain. Gentili, the Spanish
advocate in London's Royal Council Chamber sitting in Admiralty insisted
that only a license from a recognized sovereign could authorize the exercise
of soldiers' or privateers' privileges, thus that legitimate sovereigns
attempting to suppress rebellion could treat the rebels as criminals, even
"pirates," with whatever legal results could be drawn from that classifica-
tion, without raising any questions of international law.
Under the analyses of both Grotius and Gentili, robber bands not
purporting to have any license could be treated as "pirates," but the legal
result of this was not to treat "pirates" directly as Roman law "latrones" or
30 The Law of Piracy
"praedones." It was to justify attaching the label "pirate" to those robber
bands that would have been called "latrones" or "praedones" but not "pirata,"
before the great reanalysis of the late 16th century. Whatever the Roman law
treatment of "latrones" and "praedones" the effect of this was to refer the
treatment of those now called "pirates" back to the municipal law systems of
the labeling states, presumably by unconscious analogy to the primacy of
Roman municipal criminal law in questions involving the disposition of those
whom the Roman law called "latrones" or "praedones."
There is another aspect to the Grotian view of the international society of
the time that must be mentioned. Despite Grotius's reputation as an able
advocate for seas open to all, 126 in De Jure Belli ac Pads the more extreme
arguments, under which Portuguese monopoly treaties with the Sultans of the
Malay Archipelago and their enforcement against third states were
denominated criminal, 127 were dropped and Grotius concluded that:
[Sovereignty over a part of the sea is acquired in the same way as sovereignty
elsewhere, that is, . . . through the instrumentality of persons and of territory. It is
gained through the instrumentality of persons if, for example, a fleet, which is an army
afloat, is stationed at some point of the sea; by means of territory, insofar as those who
sail over the part of the sea along the coast may be constrained from the land no less than
if they should be upon the land itself. 128
Thus the basis for the extension of municipal criminal law to the activities o£
foreigners on at least parts of the sea was laid in theory. The theory was that
of effective occupation — the power in fact of a sovereign to dominate a part
of the sea and apply his law there as he did on land; a power that could be
exercised not by theoretical claims, but by the use of military force.
Argumentative support for this position was found in various Greek and
Roman precedents, 129 although the example of the Roman Senate conferring
monarchical powers on Pompey in 68 B.C. is not cited. Thus, as Gentili had
found a legal rationale for the extension of municipal law to foreign territory,
so Grotius, reversing his earlier position as the sea power of The Netherlands
increased, found a rationale for the extension of municipal law by any state
with a warship to that part of the sea within the military control of that
warship.
Some Implications. It may thus be seen that the word "piracy" entered
modern English usage in a vernacular sense to cover almost any interference
with property rights, whether licensed or not, and was applied as a pejorative
with political implications but no clear legal meaning. The word in its Latin
form entered the vocabulary of lawyers concerned with public order in the
late 16th and early 17th century as a synonym for action, whether or not
related to property rights, which was conceived to be unauthorized within
the legal system posited by the lawyers using the term. Thus, it could be
applied to "rebels" violating the constitutional order of a single country;
persons within the allegiance of one monarch acting against that monarch
Origins 31
under the purported authority of another monarch; foreign privateers whose
property rights were being denied; or even the officials of a political society
denied legal status as a person subject to the "international legal order," as
defined by each ruler in Christendom for himself, with the legal effect that
the officials of that "non-state" would be regarded in the denying state as
lacking the legal power to change property rights or carry on a legal "war" or
prescribe law in any territory. In its most expansive meanings, no implication
of criminality existed; it was not a crime by any law to be an official of an
unrecognized political society. On the other hand, an individual acting
against the criminal law, or the law regarding "treason" or "mutiny," of a
state could not exculpate himself from the operation of that law by claiming a
license to act issued by an unrecognized "government." A link between
individual criminality and the international legal order was thus put in place,
as the existence of political groups outside the legal order, "outlaw" groups,
meant that action taken pursuant to the "outlaw's" authority was, as far as an
official within the legal order was concerned, unauthorized and, if that action
violated a rule of law of the enforcing official, and occurred within his
perception of his jurisdiction to enforce the rule, could be punished regardless
of the link to an "outlaw" organization.
To follow the evolution of this conception further, it is necessary not only
to understand the fundamental difference in the approaches to defining the
legal order taken by "naturalists" and "positivists," but to know that as
governmental control tightened with the rise of a secular legal order in
Europe based on effective control and ambition, the outer limits of national
assertions of jurisdiction to prescribe rules of property and criminal behavior
were explored. Some of those limits have already been mentioned, as it was
pointed out that legal words that did not reflect reality may have governed
some statesmen's actions, but that legal policy as well as political action lost
persuasiveness and effectiveness as it departed from reality as perceived by
those whose actions were supposed to be influenced by it. As the vice of
"naturalism" is to attribute legal force to the merely moral commands that
the lawyer or statesman would like to be law but which is denied by others, so
the vice of "positivism" is to treat as if real the model built by mere words to
reflect what the lawyer or statesman would like to be real rather than what
actually is. Where "naturalism" imputes consensus where there may be none,
"positivism" can lead to solipsism — an emphasis on the arbitrary aspects of
consent as the basis of the law-making process, and a retreat to "de jure"
dreams of power.
In any case, in addition to its usage in the international legal order, the
word "piracy" in the 16th and early 17th century was acquiring a meaning in
the municipal legal orders of the countries of Europe whose views of law
were to dominate sophisticated thought for the next four hundred years. It is
impossible to understand the evolution of the conceptions of "piracy" in
32 The Law of Piracy
international law without first understanding not only some rudiments of the
conception of the international legal order and some legal theory, but also it is
necessary to consider the municipal law usage, particularly in connection
with municipal criminal law and its jurisdiction to apply to the acts of
foreigners abroad, and municipal property law and the need to mesh that law
with foreign property law so that private property crossing national
boundaries remain secure in the possession of the foreign "owner." We now
turn to that.
English Municipal Law and Piracy in the Renaissance
Jurisdiction and Substance; Admiralty and Common Law. It is beyond the
powers of a sole scholar in reasonable time to analyze the municipal laws that
might relate to the conception of "piracy" of all countries, or even all
European countries, or even a few major European countries. It is fortunately
possible to trace the municipal law of England 130 as it relates to "piracy" from
the time it began to emerge from the obscurity of time and the vagaries of
medieval records, through the great formative days of Sir Edward Coke
(1552-1634) and Sir William Scott (Lord Stowell) (1745-1836) to modern
times. As in the examination of classical sources, it is necessary to begin with a
word of caution. The word "pirate" does not appear with a precise meaning
in English legal literature until the 16th century, and attempts to trace the law
regarding "piracy " back beyond that time all seem to assume that other legal
words carried the identical meaning. 131 The assumption may be correct, but it
is not convincingly argued in any known source despite the extraordinary
volume of writing devoted to the history of the English law relating to
"piracy. " Typical of the confusion, and worth mentioning only because of the
eminence and scholarly reputations earned by the people involved, is the
elaborate history of the English and international laws of "piracy" by Chief
Justice Cockburn in Regina v. Keyn 132 and the compilations of documents by
Reginald G. Marsden. 133 In the first, Lord Cockburn refers 134 in some detail to
two cases of Common Law indictment for "piracy" in the time of Kings
Edward II and Edward III. 135 In fact the word does not seem to appear in any
of his quotations. 136 Marsden, while reproducing several documents that use
the word in the 14th century and even earlier, notes:
As a legal term "piracy" belongs to a later date. The Latin word is common from the
first, but it was not always used in an evil sense. In 1309 wines are stated to have been
captured "morepiratico;" in 1353 " piratae et alii inimici nostri" are spoken of . . ., and in 1359
one Robert Blake, who robbed a ship at sea, is called "pirata" . . . But in the twelfth
century ships in the service of William II are spoken of as "piratae" — "jam mare munierat
piratis . . .; Anglici vero piratae qui curam maris a rege susceperant . . .;" and in 1324 Edward II
prepared for war "Admiralos etpiratas super mare constituendo" . . . Before the latter part of
the 14th century robbery at sea seems to have been dealt with in the King's courts as one
and the same crime as robbery on land; and so of murder and assault. The records do not,
Origins 33
to the present writer, appear to support the view insisted upon by some of the judges in
Reg. v. Keyn . . . that piracy has from the first been recognized by the law of England as a
crime distinct from robbery and murder on land. 137
On the other hand, Marsden himself used the word "piracy" in headnotes
to various documents in which neither the word nor any clear concept
appears; his indexes use the word to refer to cases that seem to have nothing to
do with the word or any clear concept of "piracy, "and in at least one place in
his table of contents he refers to a document that seems irrelevant in both
word and sense to anything related to "piracy" and for which he does not use
the word in his own headnote. 138 Occasionally he uses the word to translate
Latin documents in which the word "pirata" or its derivatives does not
appear; since his own note quoted above indicates his awareness of how
deceptive that can be, the practice is inexplicable. In these circumstances, and
finding similar doubts and problems to attend reference to other deservedly
reputable works, 139 it seems necessary to return once again to primary
sources, so happily collected by Marsden, hoping only that the reprints
purporting to set out original language are more accurate than the
translations. 140
There are at least three analytically distinct problems that must be seen
clearly before it is possible to understand the growth of English law relating
to "piracy" and its relationships to international law. First, there is the
question of jurisdiction: Is there a court in England empowered by English
law to consider the case? Second, there is the question of substance: Is the
particular act complained of a violation of English law? Third, there is the
question of the reach outside of England of the prescriptions of English law
and the enforcement jurisdiction of English courts. Each of these problems
contains within it a whole host of subsidiary questions and the answers to any
one of them change the pattern in ways that effect the whole problem and,
indeed, the perceptions of all three problems. Because the interplay of these
three problems is so complex, and the implications of tracing any particular
pattern of legal behavior in disregard of the entire picture are so destructive
of coherence, a basically chronological approach will be taken.
In the earliest documents, as noted above, the word "pirate" (the
documents are in Latin, the word "pirata") and its derivatives are not used in
any sense pertinent to this study. Indeed, Marsden's headnotes to documents
of 1216 and 1228 relating to a ship "piratically captured" and "A pirate
hanged" do not reflect either language or concept in the documents
reproduced. In the first 141 King John directs his port bailiffs to find and deliver
to its owners on presentation of proof of ownership a ship and goods alleged to
have been diverted, and to hold for further action those in whose hands the
ship and goods may be found. The case may involve maritime embezzlement
and in any case seems a civil rather than a criminal matter with an
undifferentiated legal power in the King to resolve both civil and criminal
34 The Law of Piracy
aspects of it. In the second, the criminal charge for which one Willelmus de
Briggeho was hanged involved consorting with general evil-doers who
robbed a ship off the port of Sandwich (". . . Willelmus de Briggeho, suspensus
posteapro consensu malefactorum navis depredate ante Sandwicum . . . "). 142 Not only is
the word "pirata" or its derivatives not used, but again the facts are so unclear
as to make any conclusions doubtful. All the people involved might well have
been English, the vessel robbed might have been English, the location seems
to have been mentioned for the purpose of identifying the incident, rather
than as significant to establish any court's or nation's jurisdiction, and the
location is so closely linked with a bit of land clearly within the realm of
England that it is impossible to say that any concept of extending that
jurisdiction seaward was involved.
The earliest reference to an international incident in the modern sense
appears in a document of 1289. King Edward I by that document established a
Commission to inquire into * 'certain trespasses [transgressiones]" committed by
Englishmen against some Frenchmen and complained of by the King of
France. The Commissioners were directed to "cause due restitution to be
made of the goods." 143
Apparently private recapture, self-help, was the normal remedy of seamen
despoiled of their property in those rough times, and well into the next
century, 144 but there is mention of letters of marque in documents of 1293 and
1295 indicating at least a Royal attempt to get control over the activities of his
mariners when foreign ships might become involved and protests from
foreign princes could be expected. 145 In the latter case, the letter ("licentia
marcandi") granted an English petitioner the legal right at the law of England
to take back from Portuguese "sons of perdition" the value of goods seized by
them under license of the King of Portugal, who is alleged to have got a tenth
of the booty. It is noteworthy that the English license is not directed against
the particular people who took the English goods, but against any subjects of
the realm of Portugal. What seems to have been involved was not an attempt
to get control of robbery at sea, but of private legal remedies; to limit the
rights of English victims to the equivalent of restitution for injury done by a
foreigner, and to avoid as far as possible committing the public forces and
resources of the Crown to the petty struggle.
It was about this time that the post of "Admiral" was established in
England as a magnate authorized to oversee the issuance of letters of marque
and reprisal and their due performance and ultimate cancellation. 146
It is not clear what the source of substantive law was that the Admiral was
supposed to apply. The Commissioners of 1289, responding to complaints by
the King of France against English seamen, were directed to make the
restitution "in accordance with the law and custom of our realm,"
England. 147 In 1361, a prior commission 148 to try the case in a Common Law
court (the accused having been caught in England with their booty) was
Origins 35
revoked and replaced by a commission authorizing "our Admirals" to try the
case "according to the maritime law. " 149 But the "maritime law" is not likely
to have been conceived as a law foreign to England. The great Code of the
Laws of Oleron, compiled in a small island within the feudal lands of Eleanor,
Duchess of Guienne, the wife of Henry II and mother of Kings John and
Richard I, had been promulgated by her for Guienne in the Gascon tongue,
promulgated with revisions then in England by Richard and John, re-issued by
Henry III in 1266, and confirmed by Edward III in 1329. 15 ° They were
distinguished from the Common Law of England by the very fact of royal
promulgation as a Code; the power of interpretation was given to the
Admirals as beneficiaries of royal patronage rather than Common Law judges
with their own traditions of independence and the legal power to develop
custom, as distinct from statutory or decree law, in both criminal and civil
matters. Presumably the merchants most directly concerned with the terms of
maritime law preferred this system also, since their interests could more
easily be pressed at the royal court or with a royal administrator, the Admiral,
than with Common Law judges when a change in the law or its interpretation
was sought in the interest of English sea-borne commerce. Thus, when a
commission of 1374 directed the leading administrators of England's
Southeastern coast to hear and determine various criminal matters arising at
sea along the coasts, "supra mare per costeras," o£ Kent (the word "piracy" is not
mentioned: The list of offenses included the Common Law and non-legal
words "robberies, depredations, discords and slayings") 151 it seems significant
that the law to be applied was "the law and custom of our realm of England
and . . . the law of the sea. " 152 The implication is not that the law of the sea is
different from the King's law in England, but that it is different from the other
law of England, the Common Law which includes its own custom. The
reference to the "law of the sea" pointedly omits any reference to custom.
The word "pirate" enters the English legal vocabulary via Latin
commissions in the 15th century. The first direct legal use of the word appears
to have been in an order of Henry VI in 1443 directing the restitution to
Englishmen of goods taken from them by "pirates." 153 The context is purely
civil — a question of property rights, not of crimes, and the word seems to be
used in a pejorative, not a technical, sense. Similarly, a Proclamation by
Henry VII in 1490 mentions:
divers and monyfold spoliations and robberies . . . uppon the se unto the said subgettis of
the said most high and myghty princes [of England and various foreign places] ... as well
by their enemyes as by other pirattis and robbers, which, as it is said, daily resorte into
divers portes and places of this his realme of England, and ther be suffered to utter and
sell their prises, spoiles, and pillages . . . 154
This seems to classify the "pirates" with "enemies" as well as with
"robbers," and classifies what might be lawful spoils with the booty of
wrongful takings. Significantly, the Proclamation does not purport to apply
36 The Law of Piracy
the law of England or the "law of the sea" or "maritime law" to the first
takers of the goods. To discharge the King's international obligations to his
fellow princes it takes a strictly territorial approach, commanding that:
[N]o manner of persons . . . from henssforth comfort, take no receyve, in any . . . places
of this his realme any of the said mysdoers, ne any merchandisez or goodes by them
spoiled or takyn . . . uppon payn of forfeiture of the same merchaundises ... or to the
value thereof, for restitution to be made to the parties grevid, and uppon payn of
imprisonment ... at the Kinges will. 155
The command is directed at Englishmen and perhaps foreign merchants only
when they are in England; punishment for the "enemies," "pirates" and
"robbers" is not prescribed, but only for the receivers of their goods in
England.
The earliest reference to "pirates" in a context that seems to attach specific
legal results to their activities seems to be a Latin letter of appointment by
Henry VIII in 1511 to John Hopton, who was directed to:
[S]eize and subdue all and singular such spoilers, pirates, exiles, and outlaws [praedones,
pirates, exules, et bannitos] wheresoever they shall be seized, to destroy them and to bring
all and singular of them, who are captured, into one of our ports, and to hand over and
deliver them, when so brought in, to our commissioners . . , 156
Whether or not this instruction was actually intended to apply to foreigners
in foreign vessels, or only to Englishmen and persons of any allegiance in
English vessels, is not clear. Nor is it clear how far from the coasts of England
Hopton was expected to range; he appears to have confined his activities to
areas within easy sail of English ports 157 and the more general language of the
letter of appointment may never have been intended to reach farther.
Moreover, the degree to which the commissioners mentioned in the letter had
jurisdiction in derogation of Admiralty courts and Common Law courts,
whether in fact there were Admiralty courts functioning throughout the
period, are questions it is impossible to resolve without what appears
excessive research. 158
Admiralty Commissions and Common Law: The Statutes of 1535 and 1536, The
first attempt to organize the administration of justice regarding maritime
English offenses and have it apply in a regular way, through permanent
tribunals instead of through ad hoc tribunals set up under ad hoc commissions of
the King, was not until 1535. 159 The Preamble to that statute says:
Where pirates, thieves, robbers and murders upon the sea, many times escape
unpunished, because the trial of their offences hath heretofore been ordered before the
admiral, or his lieutenant or commissary, after the course of the civil laws, the nature
whereof is, that before any judgment of death can be given against the offenders, either
they must plainly confess their offences, (which they will never do without torture or
pains) or else their offences be so plainly and directly proved by witnesses indifferent,
such as saw their offences committed, which cannot be gotten but by chance at a few
times, because such offenders commit their offences upon the sea . . . 160
Origins 37
To cure these legal problems, the statute provides that all "felonies,
robberies, murders and manslaughters" should henceforth be tried by special
Commissions using the forms of the Common Law, under which conviction
and execution were easier. The word "pirates" or its derivatives is not used in
the operative part of the text.
Section IV of the statute of 1535 allows for an unlicensed taking at sea not to
be considered criminal if only necessities of the voyage were taken, and a
written promise to pay for them was given and redeemed within four months
if the taking were "this side of the straits of Marroke" or 12 months if on the
other side (in the Mediterranean). There is no mention of takings across the
Atlantic or on the other side of the Straits of Magellan; but then Drake had
not yet made his circumnavigation. The statute is silent as to the nationality of
the taker or the victim, or the nationality of the vessels. Nor does it deal with
the defense of vessels anywhere. It appears to envisage the arrest in the
normal Common Law fashion of accused malefactors in England; it thus
merely replaces the discretionary Admiralty courts, using Civil Law
procedures, with tribunals (Commissions) to be appointed and to use
Common Law procedures outside both Admiralty and Common Law systems
in England without affecting the normal rules of jurisdiction.
The statute of 1535 was superseded the following year by a nearly identical
statute, 28 Hen. VIII c. 15 (1536). 161 The Preamble to the statute of 1535
referred to "pirates, thieves, robbers and murders." The Preamble to the
statute of 1536 refers to "traitours pirotes theves robbers murtherers and
confederatours." Presumably, "traitours" and "confederatours" were added
to the list to take account of evolving Common Law thought that wanted to
classify "piracy" as an Admiralty term for breach of feudal relationships,
equivalent to the master-servant bond in days when status seemed more
important legally than contract ties. Under the laws of Oleron, the master of
a vessel had some of the legal powers of a feudal superior over his crew. 162
Thus, "traitours" and "confederatours" (i.e., conspirators, those who join
together to commit a wrongful act) would relate to passengers and crew
within the vessel, and seem to refer to what today would be called
"mutineers." 163 Like the statute of 1535 the statute of 1536 drops the word
"pirate" "pirotes"] in its substantive terms:
All treasons felonyes robberies murders and confederacies, hereafter to be comytted in
or uppon the see, or in any other haven ryve creke or place where the admyrall or
admyralls have or pretende to have power auctorities or jurisdiction, shall be enquired
harde determyned and judged in such shires and places in the realme as shall be lymytted
by the Kynges Comission or Comissions to be directed for the same, in like fourme and
condicioun as if any such offence or offences hadd been comytted or done in or uppon the
lande; and such comissions shall be . . . directed to the admyrall [or his delegates] . . . and
to iij or iiij such other substantiall persons as shall be named or appointed by the lorde
chauncellor of Englande . . , 164
38 The Law of Piracy
The legal words of art did not include any reference to international law or
Roman law or, indeed, any concept of "piracy" except in the nontechnical
recitation of the preamble; instead the words of art of the English Common
Law of crimes were used. It is in that context that the word "felonyes" makes
sense; the distinction being drawn involved the technical English law of "high
treason," "petit treason" and Common Law crime, as yet incompletely
distinguished from tresspass, or tort actions. 165
The extraterritorial reach of this legislation was no more clear than before. It
was apparently restricted to the places in which the Admiral by the law of
England had legal power, authority or jurisdiction. That apparently included
vessels flying the English flag wherever they might be afloat, including foreign
ports and the navigable waters of England. 166 But it was never clear whether it
extended to foreign vessels on the high seas or on internal navigable waters of
England which were within the Common Law courts' jurisdiction. The case o(
Regina v. Keyn showed at great length that there was considerable doubt,
ultimately resolved rightly or wrongly against the Admiral's pretentions, if he
had any, that it extended to foreign vessels outside England's Common Law
jurisdiction even within three miles of the English coast.
The system remained fundamentally unaltered through the entire period of
this study. 167
In Rem Property Adjudications. The earliest technical legal usage of the word
"pirate" in an English court reflects the Roman law origins of the "Civil
Law" applied in those English courts not governed by the "Common Law" of
England. 168 In 1553 John Clerke, "Proctor General" of the Admiralty court of
England, referred to goods "left and deposited by Henry Strangwis, Peter
Killigrew, Thomas Killigrew and Baptist Roane & others . . . pirates, robbers
and malefactors [piratas predones et malefactores] . . . now being under arrest. " 169
Apparently it was the goods that were arrested, not the "piratas predones et
malefactores," who had fled. The goods were confiscated and the various
claimants were given a chance before the Admiralty court in an in rem
proceeding to prove their property rights. It is unclear whether the denial of
property rights to those who had fled (presumably for fear of criminal
prosecution in the Common Law courts or before Admiralty Commissions
under the statute of Henry VIII) was a reflection of a legal conclusion that
"pirates" could not possess property at English Common or Civil Law. It
might equally well have been a mere incident of the Civil Law system of in rem
proceedings under which those with claims to property must submit those
claims for adjudication in the light of the claims of others, and failure to
present a claim for whatever reason resulted in loss of the possible rights and
carried no criminal law or other general implications.
The notion that calling the possessor of a ship a "pirate" would deprive him
of legal rights to the ship seemed very useful to Sir Julius Caesar, 170 who
Origins 39
applied the word to possible claimants in a series of widely different in rem
cases. For example, in 1585 the Diana was arrested at the order of Caesar and
condemned as a "pirate" ship to be sold for the benefit of the Admiral when
her Master, a Frenchman named Killie, sailing under a French flag, did not
appear. Killie was considered a "pirate" by Caesar even though it seems
possible that he had a French commission, or letters of marque and reprisal,
authorizing in the name of France his depredations against English ships. 171
There was no criminal action involved.
In another case in 1598, Caesar gave title to a prior owner against a
purchaser who derived his claim to title from an Englishman "commonly,
openly, publicly, and notoriously reputed to be a pirate [articulatis pro pirata
communiter, polam, publice, et notorie reputatum fuisse et esse]" in the complete
absence of criminal proceedings or other evidence as to the place of the taking
or the circumstances surrounding it. 172
In 1608 another Admiralty judge, Thomas Crompton, used the word in a
similar way to deny title to James and John Powntis, purchasers "in foreign
parts" of Venetian goods "captured ... by one John Ward, 173 and other
pirates and sea rovers" and sold to them apparently via official channels in
Algiers. The goods or their value were granted to the Venetian Ambassador
for the merchants he represented. 174 This case seems to avoid the problem of a
commission for Ward, or the possibility that his capture was a "lawful prize"
or a confiscation for non-payment of Algerine transit tolls, by simply calling
Ward a "pirate" and ignoring the probable subsequent involvement of the
Algerine officials in a legal transaction to transfer title. There was no
criminal proceeding or attempt at definition.
While not pertinent to the definition of the word "piracy," it might be
mentioned in this place that the use of that word to bring into play the idea
that stolen goods should be returned to their previous owner because thieves
by ancient principle cannot pass title they do not have, even to innocent
purchasers, created special problems with regard to the use of the word.
Without denying the superior title of the prior owner to the title a thief might
assert merely by his possession of the goods, the needs of commerce required
greater stability of title when dealing with a foreign seaman; a merchant had
to be able to buy goods from one who might later turn out to have been a
"pirate" (however defined), or a major legal impediment would limit
international seaborne commerce. The solution to this problem appears to
have been not only the easy acknowledgment of title transfers under Barbary
states law for the benefit of corsairs (or "pirates"), but also the application in
English law of the rule that:
[I]f a Man commit Piracy upon the Subjects of another Prince or Republique (though in
League with us) and brings the Goods into England, and sells them in a Market Overt; the
same shall bind, and the Owners are for ever concluded, and if they should go about in
the Admiralty to question the property, in order to restitution [sic], they will be
prohibited. 175
40 The Law of Piracy
Englishmen's goods found in England were still to be returned to their English
prior owner as a matter of statute law. 176
A strange incident in 1615 demonstrates the vernacular use of the word by
the highest officials of England to refer to an Admiralty in rem case in which
the word "piracy" was not in fact used but the legal results were drawn
without it. In 1615, Captain Newporte of the Centaur invited the Captain of
the French ship L'Esperance to dinner off Cape Verde. Newporte then seized
the French ship, whose owner turned out to be the politically influential
Governor of Dieppe, Francois de Villiers Houdan. The English Admiralty
court under Judge Daniel Dun decreed restitution of the vessel or its value to
the French owner, ending a diplomatic crisis. There is no evidence of Captain
Newporte 's authority, if any, for his action, nor is there any known record of
a criminal proceeding growing out of the incident. But in the Privy Council
Register for 11 July 1617 there is a reference to money held "for satisfaction of
a sentence given in the Court of Admyraltie on the behalfe of Viliers
Howden, a governor of Deipe, concerning a pyracie committed upon a shipp
of his by one capten Newporte. " 177 Apparently, the word "pyracie" was used
in a non-legal sense to mean something like "unauthorized taking," with an
implication of crime; no clear legal sense seems to have been intended. The
only legal action mentioned was the one for restitution. The word "sentence"
does not seem to refer to any criminal court's action, but to the judgment of
the Admiralty court in an in rem proceeding. It is in this context that it is
possible to interpret the remark of King James I in 1624 178 referring to the East
India Company as "pirates" merely for failing to pay him what he felt was his
share of their lawful captures.
Outlawry, Crime and Licenses. From the mid 16th to the mid 17th centuries the
word "pirate" and its derivatives was used more and more frequently in
official English documents not related to property-rights cases before the
Admiralty courts, and had acquired a meaning as a vague basis for ever-
expanding English assertions of jurisdiction. In 1569 Queen Elizabeth had by
proclamation denounced "all pyrats and rovers upon the seas" and declared
them "to be out of her protection, and lawfully to be by any person taken,
punished, and suppressed with extremity." 179 Until 1569 ships suspected of
involvement in "piracy" and privateering without a commission had been
treated with strict attention to English forms; they (the ships) were to be
arrested only after arriving at English ports, and Vice-Admirals were simply
warned against harboring or countenancing "pirates" within their jurisdic-
tion as that jurisdiction was established by their commissions. 180 An indication
of the difficulties of an increasingly centralized administration gaining legal
control of English seamen continuing the ancient practice of re-capture
without a license, abusing their opportunities and making general commerce
of English as well as foreign merchants unsafe, lies in the recitation of fact
Origins 41
accompanying a Warrant from Queen Elizabeth to the Warden of the Cinque
Ports (the English fortified towns strategically situated on the South coast) in
1577:
Whereas there is an unyversall complainte made as well by our owne merchaunts and
fishermen, as also by other merchaunts straungers, being the subjects of our frinds and
allyes, of the great number of pyrats and sea rovers haunting and keeping the narrow
seas and streames thereof . . .; We having care that our streames should be quyet and
voyde of such malefactors, and understanding that sute hath ben made to our previe
Counsell on the behalf of divers townes corporat of our realme, being annoyed by such
pyrates and sea rovers haunting their coasts, to have license to sett fourth shippes for the
chastening and repressing of the said malefactors, offering to do the same at their owne
adventure, proper costs and chardges ... by these presents do geve full power and
authoritie unto you, to give and graunte commissions under the seal of your office of the
Cinque Portes to as many, as well cities and townes corporat of this our realme, as you
shall thinke good, as also to others whom you shall thinke such as will not abuse the same,
to arme and sett fourth ... to purge and clere the sea coasts of such evill persons . . . 181
Despite the language of outlawry in the Proclamation of 1569, the Warrant of
1577 requires that the forms of English law be followed if any property were
to change hands as a result of the law-enforcement effort. Persons licensed by
the Warden of the Cinque Ports under this Warrant, if they wanted any
compensation for their own costs to be paid out of "the proper shippes and
goodes of the pyrats or sea rovers" they have caught, could do so only "after
they have been thereof attaynted in the [form] of lawe as shall be thought
convenyent by the [officials] of our Exchequier." 182 The procedure was set
out in a series of commissions:
Imprimis that the pyrats taken maye be brought to the next port, and there presented to
the Vice Admirall, ... or the next justice of the peace, who shall send them to the nexte
gaol, their [sic: ther (there)?] to remayne untill they be tryed by order of justice.
That the shippes and goods and merchandizes in the possession of the pyrats be . . . valued
by the oth of fower honest, skilfull, and expert persons . . . and then delyvered to the
custodie of the said customer . . ., their to remayne unto such tyme yt maybe appear how
much thereof shall appertaine to these pyrats, and how much to others. 183
"Customer" apparently meant "customs enforcer," i.e., person holding a
license to patrol the coast and see to the enforcement of English import laws.
The word "pyrat" seems to have been applied to smugglers as well as those
whose acts fell within the legal terms used in the legislation of Henry VIII
quoted above.
The term "pirate" was used also to cover Englishmen holding foreign
commissions as "privateers" without the Queen's permission. In a Proclama-
tion of 1575 the situation is clearly described:
[H]er Majestie's will and pleasure is that none of her subjects should entermeddle in anie
quarrells of anie forraigne prince or subjects, either on thone side or thother, (speciallie
by sea), without her Majestie's license . . . Because now of late, under pretence of those
forraigne services, manie piracies be dailie committed and done, yea in her Majestie's
42 The Law of Piracy
owne ports, and a great number of maryners ... be torned from good subjects to be
pirates . . . And because her Heighnes hathe further bin informed that divers of her
officers . . . have wincked often at theis disorders . . . express warning to all her
Heighnes' officers that whosoever shall be hereafter founde to be negligent in the
apprehending of suche malefactors in the execution of this proclamation, or shall
wincke at their doinges, . . . shall not onlie lose their offices, but shall incurr her
Majestie's further displeasure, and be suerlie punished . . . 184
This Proclamation apparently rested on the assumption that "piracy" was not
illegal at international law but only at English municipal law, and that the
English jurisdiction was felt to be grounded in the relationship between
subject and sovereign, not in any jurisdiction over the acts of foreigners. Some
territorial aspect to jurisdiction seems to be implied by the failure to
distinguish between acts done in "her Majestie's owne ports" as well as in the
narrow seas (which were, in any case, regarded as within English prescriptive
jurisdiction even if only to exclude foreign ships or make them as a legal unit
obey English law without actually applying English law within them) and in
the Warrant issued at about the same time to the Warden of the Cinque Ports
mentioning "oure streames. " "Piracy" seems to have meant robbery or some
other crime listed in the legislation of Henry VIII within the jurisdiction
given then to Admiralty Commissions, and not acts done by foreigners
outside of that jurisdiction. As noted above, that jurisdiction was territorial
and extended to English flag vessels, but, despite the learned arguments of the
minority in Regina v. Keyn, did not at this time in practice extend to foreign
flag vessels on the high seas or foreigners within foreign vessels in English
seas.
The notion that persons holding a foreign license might be enemies but not
criminals even if acting on board English vessels or against English vessels,
even if acting in English rivers and portions of the seas, may be seen in the
restriction to English subjects of the terms of the Proclamation of 1575. In
approving the draft Warrant of 1577 Lord Burghley, the head of Elizabeth's
administrative office, indicated that this was his conception. He wrote to the
Warden of the Cinque Ports, Lord Cobham, that if there were peace between
England and Spain the entire fuss would subside "for lack of victims." 185
Further evidence that the word "pirate" was applied in 1577 without specific
meaning at international law exists in a note by David Lewes, an Admiralty
judge apparently consulted by Lord Burghley in this matter. At the bottom of
a draft letter of assistance to Sir William Morgan ordering her Majesty's
officials to help him prepare for his voyage of discovery and "also (if occasion
so serve) to serve against the Turkes and Infydells," Lewes wrote "Instede of
this make a permission to take pyrates, according to her Majestie's
warrant." 186 It is hard to see how "Turkes and Infydells" were necessarily
criminals at English law or how English law extended to places in which the
discovery of unknown lands might be made. And there is no evidence at all
Origins 43
that "Turkes and Infydells" were conceived at that time as necessarily
violators of international law in Europe. Indeed, it would seem that Lewes's
note was not a legal translation of Morgan's request, but a denial of that
request as it might apply to "Turkes and Infydells," restricting Morgan's
authority to whatever authority was given to commissioners under the
warrant of 1577.
The needs of English commerce and possibly imperial policy seem to have
influenced Lewes, and two years later, in 1579, he issued a legal opinion in
which the earlier documents other than the Proclamation of 1569 were
ignored and the most expansive statement of English jurisdiction was given to
the Lord High Admiral:
First it is lawful for every man, by the lawes of the sea, to apprehend and take pyrats,
being public enemies to all estates, without authority or commission.
Secondly, the Queen's Majesty for proclamation published in Aprill ano 11° regni sui
[1569], hath declared and denounced all pyrats and rovers upon the seas to be out of her
protection, and lawfully to be by any person taken, punished, and suppressed with
extremity.
Thirdly, the first and principall part of the Lord Admirall's office by law is, and ever
hath been, to clear the jurisdiction apperteyning to his office, being the sea, of pyrats and
rovers haunting the same; in respect whereof he hath, and ever hath had their goods and
chattels, being condemned and atteynted for the same.
Fourthly, by his Lordship's letters patents it may appeare that he hath a more ample and
larger power than to set forth ships to take pyrats. 187
The implementation of this opinion, which seems to have no legal argument
in it to support its conclusions of law, indicates that it was not taken seriously
as a statement of international law by the Crown. Shortly after it was issued,
Elizabeth complained to Lewes as an Admiralty judge, Sir Gilbert Gerrard as
Attorney General, and 13 others involved in the enforcement of the law, that
the 1577 warrant had not worked well. Instead of simply instructing the
Admiral to suppress "piracy" by seizing "pirates" wherever he found them
under the general law of the sea or as outlaws under English law as Lewes's
opinion seems to have urged, she stiffened the enforcement in England of the
English procedures by providing for small Commissions consistently with the
statute of Henry VIII:
To enquire searche and trie out ... by oathes of twelve good men or otherwise by all
waies and meanes you can devise of all manner of person or persons that have offended
. . . contrarie to the lawes and statutes of this our realme or equitie and justice . . . 188
The possibility that "equitie and justice" was intended to include interna-
tional law seems to have been overborne by the need to dispose of the
property of the "pirates," however defined, under the forms of English law.
Those forms were essential to the prosperity of the Admiral however
44 The Law of Piracy
inconsistent with the view Lewes might have had as to the legal justifications
at international law for individuals unlicensed by the Crown to seize
"pirates." When a fearless adventurer like Sir Walter Ralegh was involved,
there was no thought of his simply seizing "pirate" goods any place. His
appointment in 1585 to be "Vice Admiral" was restricted to "the countie of
Cornwall and the sea quoasts thereunto adjoyning," and he was required to
post bond against the possibility that he might fail to make true account "of all
suche piratts' goods, concelmentes, profitts, and casualties, as shall happen to
growe and rise within the precincte of the said Viceadmirallshippe." Fully
half of the "pirate" goods coming to him in his new post was to go to his
political senior, the Lord Admiral. 189 And in 1589 an Order in Council was
issued that all English captures, with no exceptions, must be submitted to an
Admiralty court to have the lawfulness of the prize adjudged; failure to abide
by the procedure meant that the buyers got no title and the commission under
which the prize was taken was to be considered void. 190
Coke's Synthesis. There are many documents relating then to the growth of
the English law regarding prize and commissions, letters of marque and
reprisal under the centralized administration Lord Burghley organized for
Queen Elizabeth. In them there is no indication that "pirates" might be taken
without a commission, 191 and by 1599 there is some indication that the word
"pirate" was acquiring yet another meaning in English, as a generic term
carrying with it the implication of criminality and applied to English captains
who ignored the rules under which the Admiral made his living:
[H]er Majestie now commaundeth, that whosoever shall herafter intermeddle with, or
take at sea, any shippe or vessell coming from, or going to, any port or haven belonging
to the sayd Seigneurie of Venice, or Grand Duke of Tuskane, and shall break the bulke of
the goodes of any such shipp or vessell, (though the prise be lawfull), before the same
shalbe adjudged good prize in the high court of the Admiralty, such offendors shalbe
executed as pirates, and the shippe, with the prize also, shalbe forfeited to her
Majestie. 192
The relationship between the English municipal law regarding "piracy"
and the international law of "piracy," if there was any before 1600, received
attention at the most prestigious levels of English municipal law in 1615 when
Sir Edward Coke, Chief Justice of England at the Common Law criminal
court of King's Bench, presided over two cases in which "piracy" was an
issue. The reports of these cases by Rolle are important to an understanding of
the English conception of "piracy" as the word entered common legal usage
and England became the world's greatest sea power.
Marche's Case, alias Palachie's Case, 193 concerned a capture of a Spanish
ship by a Moroccan official during a time when England regarded Morocco
and Spain as legally at war. 194 Acknowledged as a subject of the King of
Morocco, Palachie represented to the court that:
Origins 45
He is the Moroccan Ambassador to the Netherlands and that on the sea he captured a
Spanish ship (there being war between the King of Barbary [sic] & the King of Spain) and
then coming with the ship in England, & thereupon the Spanish Ambassador complained
against him as a Pirate, & diverse Civil Law experts were commanded by the King [of
England] to give their opinions on the matter. They agree that an Ambassador is immune
from local law by the law of nature & of Nations, but if he commits any offense against
the law of nature or of reason, he loses his immunity; not so if he offends only a positive
law of any particular country, such as laws regarding clothing, etc. And many other
questions were answered by the civilians; but as we [the panel] 195 and other common law
Justices are asked for our opinions, we should say that the civilians have missed the point,
because the Defendant is being tried here for piracy, and being tried under the statute of
28 Henry VIII cap. [15? The text has a blank space here], which says that piracy should
be tried as a felony committed on land under the common law. And what is charged as
piracy here is not piracy nor would it be even a felony had it been committed on land [the
report repeats some words here and seems slightly garbled] because it is legal for one
enemy to capture another on land. According to our opinion and the relevant statute
[which is cited] we hereby rule accordingly, that if anybody wants to bring charges
against another under the pertinent statute [citing another] he who is robbed must prove
that he himself was a legal friend of our Lord the King, and that he who robbed him was
within the jurisdiction of our Lord the King or in legal friendship, because if the taking
was by an enemy it was not robbery but lawful capture. As to Palachie's Case, we agree
with the civilians that the [Spanish] Ambassador could proceed against him civilly for
the goods that are here, for those are in friendly territory, (R[olle]: I question whether it
seems that by the law of nations an enemy can legally take from another [in neutral
territory?])Dod. suggests that rights of reprisal might be significant; Coke suggests that
if goods were taken illegally and not restored, the King [of England] might simply
return them. 196 Coke and Dod. also said that nobody could be hanged for piracy based on
robbery on the Thames [River] because that is within an English county [thus outside the
Admiral's jurisdication?]. 197
In the second case, Hildebrand, Brimston, & Baker's Case, 198 English
shipowners were trying to recover their ship in an in rem proceeding at
Admiralty. The ship and cargo had been captured by "pirates." The
petitioners sought the intervention of the King's Bench Common Law court
to prohibit further Admiralty proceedings, apparently fearing the Admiral's
interest in "pirate" goods would make it difficult for them to recover what
they felt was theirs.
Those men [petitioners] were the owners of a ship, and sent it to the Indies to trade. On
the high sea the sailors took the ship through "Piracy" (as is assumed in the Admiralty
court) and as the ship returned here to the Thames the Admiral seized it and all that is on
it as "pirate goods," claiming it all for himself under the terms of his Royal warrant, and
the merchants are taking the sails and tackling out of the ship and are suing for them in
the Admiralty court. The Petitioners now pray for a "Prohibition" to that court, to stop
the action. Coke agrees that the Admiralty has, by the grant of the King, all "Pirate
goods;" i.e., the property of pirates. But the Admiralty does not have the goods which
pirates took from other men, because that is not within the Royal grant; the owners have
those things. And if the Admiralty wants those goods, it may not sue for them in prize
because they are within the body of a county of England, that is, on the Thames. Dod.: If
a man borrows a horse, and commits a robbery while riding it, the horse is not forfeit; so
here, the ship is not forfeit simply because those who were in the ship committed piracy.
46 The Law of Piracy
Coke agreed, and he asked the Petitioners if they were convicted of piracy; to which
they replied that nobody had been convicted. So the Prohibition was granted on the
ground that the taking had been within the body of a county of England. 199
It seems plain from both these cases that Coke was primarily concerned with
the division of jurisdiction in England between the Admiralty courts and the
Common Law courts; that to him "piracy" was simply the Admiralty word
for an offense against the law of England that was based on the "Civil Law,"
i.e., the Roman law based system that English courts with extra-territorial
reach applied to transactions occurring outside England, and not the
Common Law; that it carried legal results at the Civil Law which were not
the same as the legal results the same action would have drawn at Common
Law.
In summarizing the legal situation long after these cases were decided,
Coke addressed "Piracies, Felonies, Murders and Confederacies committed
in or upon the Sea" by first noting that James I's amnesty for felons given on
his coronation in 1602 did not extend to pirates because theirs was not an
offense at Common Law, but at Civil Law, outside the kingdom, without the
legal result of forfeiture of land or corruption of "bloud" (i.e., disinheriting
the children). 200 His entire discussion of the substance of the offense is based
on the technical construction of statutory English law except for a major
assertion that only subjects of England could legally be tried for "piracy. " To
Coke "piracy" at Common Law was a type of "petit treason," and those who
are not subject to the King of England cannot break the tie of allegiance, since
there is no such tie, therefore they cannot commit treason, therefore, with
only minor exceptions, there cannot be a foreigner guilty of "piracy. " 201 Since
resident foreigners, denizens of the realm, do come within the allegiance of
the King for some purposes, it might appear that Coke's language is
somewhat too general and his conclusion too broad, but since "piracy"
cannot occur within the realm, where the Common Law applies to the
exclusion of Civil Law, that exception would not apply and Coke's analysis
seems beyond dispute. The effect of Coke's approach, which seems to set out
the traditional English position as reached by a judge concerned with
questions of jurisdiction and limiting the Crown's discretion, is simply to
make "piracy" the legal word of art that Admiralty tribunals and
commissions set up under the Act of 1536 applied to some but not all o{ the
"crimes" listed in that Act. As a kind of "petty treason," it would seem that
all cases of "mutiny" in an English vessel, i.e., a vessel with a master whose
authority over the ship's company and passengers is fixed by English law,
could be denominated "piracy." Also, an attack by one English vessel on
another could be denominated "piracy" since both vessels would have been
conceived to have a legal existence deriving from a common superior, the
Admiral or the Crown, and an attack by one on the other would necessarily
involve a breach of legal subordination by the attacking vessel unless
Origins 47
otherwise authorized by the Admiral or Crown. But, if the law regarding
"piracy" were part of the criminal law of England and derived from the
feudal conception of treason, it could apply only to those within the
allegiance of the Crown in England, just as King John's Norman knights could
not commit "treason" by attacking John's English subjects, whatever else
their acts may have meant legally. Under this "treason, " personal allegiance,
conception, the English Admiral's jurisdiction, and thus the jurisdiction of
Commissions set up under the Act of 1536, would apply only to English
vessels, not to foreign vessels, in navigable waters (of course, all vessels infra
corpus comitatus would be subject to the Common Law courts of the Shire, not
the Admiralty at all). To Coke and the Common Law judges of England in the
early 17th century, Admiralty jurisdiction itself must then have seemed in a
sense territorial, with English ships filling the role of counties in England, and
foreign vessels being ruled by the municipal laws of whatever countries gave
their captains authority to command the ships' companies and passengers.
One major gap must have disturbed Coke, although no mention of it
appears in his known writings. What law governs the actions of a foreign
vessel attacking an English ship, or an English vessel without license attacking
a foreign ship? In both those cases, the breach of allegiance apparently
necessary before the label "piracy" could attach, would be present only in the
case of an Englishman aboard the foreign attacker or the fortuitous presence
of an Englishman aboard the foreign vessel attacked. In the first case, it would
seem that the assault on an English vessel would likely have been analogized
to a similar assault in an English county's territory; the foreign attacker
would have been guilty of an assault or robbery within the jurisdiction of the
Admiralty under the Act of 1536, thus triable by a Commission; but the crime
would not have been ' 'universal ' ' or "law of nations ' ' "piracy, ' ' it would have
been "assault" or "robbery" or some Admiralty term, perhaps "piracy,"
equivalent to that. In the second case, there would have been no crime in
England unless the breach of the terms of a commission or letters of mark and
reprisal justifying the forfeiture of a deposit or other civil penalty. The gap in
English law and jurisdiction here seems to have been the basis for the
difficulties Queen Elizabeth's administration tried to solve by the Warrant of
1577, and the path by which the vernacular word "piracy "began to enter the
legal vocabulary applied to Englishmen injuring foreigners abroad.
It should be noted that foreigners aboard English vessels were, by Coke's
notion, "denizens" within the allegiance of the King of England, thus there
was a territorial basis in the nationality of a vessel for attaching English
jurisdiction to some foreigners. Coke's conception of the "high seas" (or
navigable waters) did not apparently make them part of any "territorial" part
of England or trace the Admiral's jurisdiction to any concept of territoriality
other than the analogy between a vessel itself and a bit of English territory for
the purposes of jurisdiction, and the notion that Common Law courts'
48 The Law of Piracy
jurisdiction stopped at the edge of navigable waters. The Admiral did not rule
the seas, only English vessels on the seas and perhaps Englishmen in foreign
vessels for some limited purposes where they, as the "denizens" of a foreign
sovereign, had to satisfy two allegiances and could be the victims of English
"pirates" in the traditional sense as persons against whom a "petty treason"
at English law could be committed.
From this point of view, the later notion that to be "piracy" there had to be
an exchange between two vessels of different legal subordination was a
complete reversal of the "petty treason" definition in English Common Law
as applied in Admiralty. Also, from this point of view, the notion was
excluded that England ruled the British seas as a matter of territorial right as
Grotius might have argued. The Grotian view of mare clausum might have had
considerable appeal to statesmen, but required a reconsideration of the
fundamentally feudal English conceptions of jurisdiction. It was, of course,
out of these inconsistencies that the confusions of Regina v. Keyn grew, as the
English assertions of territorial rights in the "Narrow Seas" (the English
Channel), the North Sea and elsewhere, or even in the three-mile strip of
navigable waters surrounding the British Isles, were not matched by
legislation placing those "territories" within the body of a county or within
the "territorial" jurisdiction of the Admiral as the law-giver for English
ships.
Summary. Based on Queen Elizabeth's Warrants of 1569 and 1577, and the
conceptions of territoriality that seem to underlie them, and the summary by
Coke in the reign of James I some fifty years later emphasizing a breach o£
feudal personal ties as the root of the conception of the substantive crime of
"piracy," it seems clear that later English assertions of jurisdiction over
foreign "pirates" for their acts against other foreigners, or even against
English vessels abroad, did not grow from any "natural law" concept of
universal jurisdiction over thieves, or the universality of property rights. The
assertions grew from the impact on English vessels or English persons of foreign
depredations, the impact on an English ship being analogized to an impact
amounting to physical presence in an English county, and the Admiral's
jurisdiction being that of a county judge with regard to events within English
traditional jurisdiction but outside the physical bounds of an English county. It
seems that this conception is also what gave rise in later years to the notion, first
expressed by Sir Leoline Jenkins in 1680, 202 that to be "piracy" two ships had to
be involved; one of them being a ship flying the flag of the country whose
"Admiral" was seeking a jurisdictional basis to hear the case. There is
apparently no basis in the early English law for "universal" jurisdiction over
foreigners abroad in connection with acts denominated "piracy."
One other case before the King's Bench at about this time appears to have
ended the question of the legal status of the Barbary states as far as concerns
Origins 49
English Common Law. In 1617 an Englishman named Howe was alleged to
have sent his servant, Saddocke, with a known counterfeit jewel to
"Barbary," where the jewel was sold for 800 pounds English money to the
"Roy de Barbary." The King of Barbary, after discovering the fraud,
imprisioned Southerne, another Englishman there, until Southerne repaid the
value of the fraud. The transaction appears to be similar in sense to holding a
foreign merchant through a capture under letters of marque and reprisal,
responsible for the value of goods wrongfully taken by his countryman,
except that there appears to have been no attempt first to exhaust the English
remedies, perhaps because the "King of Barbary" did not choose to submit
himself to English remedies as a matter of royal pride. Southerne then sued
Howe for the amount of his ransom. Lord Popham threw the case out saying
that there should be no legal indemnification to the plaintiff on the basis of his
imprisonment without conviction in Barbary because that was merely an act
of a "barbarous King, " for which he should seek remedy through a petition to
the Crown, not through the courts. 203 Whatever else might be doubtful in the
conclusion or reasoning of the case, the dictum that the "barbarous King"
was nonetheless a King for being barbarous, implying that the Barbary states
were states for purposes of English municipal law, and their rulers entitled to
the dignity of foreign sovereigns, was clear. The case was frequently cited
afterwards for that proposition, despite the fact that the same result would
have flowed had the King been merely a pirate chief (why should Howe have
been responsible for the lawless acts of an outlaw any more than for the
lawful, or legally unchallengeable, acts of a King?). 204
From this brief survey, it would seem that there were several different
conceptions of "piracy" reflected in the English municipal law of the late
16th and early 17th centuries and within those conceptions, several major
issues of definition. One conception, expressed most persuasively by Lord
Coke, was that "piracy" was not at all part of the Common Law of England,
but was part of the "Civil Law" enforced in England in appropriate cases. To
Coke, those cases were only those to which English concepts of jurisdiction
gave purview to English officials responsible for enforcing the Civil Law.
With regard to "piracy," he used the word to refer to a host of Civil Law
offenses within the jurisdiction of the English Admiral by tradition and Royal
delegation. That jurisdiction gave the Admiralty courts purview over
offenses that would be Common Law offenses had they been committed with
the "corpus comitatus," the body of an English county, and included any
forcible takings, whether properly considered "robbery," "murder" or,
apparently, any other violation of the King's peace. The people subject to that
jurisdiction were those within the King's "ligeance," including English
subjects wherever they might be, and foreigners acting within the territorial
jurisdiction of the Admiral, i.e., in English ships. It did not apply to foreigners
who acted under commissions of their own sovereigns, regardless of where
50 The Law of Piracy
and who their victims. Nor did it apply to foreigners without commissions
acting beyond the "territorial" reach of English jurisdiction (including ships
administered under English law). To Coke, the jurisdictional rules and ties of
allegiance were the essence of the matter; the law defining the substance of
the offense could be changed by statute.
To David Lewes and presumably other Admiralty judges and officials, the
word "piracy" carried much wider connotations. There appeared to them to
be a wider general law forbidding "piracy " under which the Admiral and his
delegates could act, if not indeed any person with or without commission. But
what the precise definition of "piracy" was, whether it included all "Turkes
& Infydells" regardless of their political organization or specific activities,
and what happened to "pirate" goods once captured, were questions they
seem to have left unanswered. Their conception seems to have derived from
the use of the term "piracy" in vernacular English, taking what seemed
politically useful, and ignoring those parts of the common usage, like
reference to "lawful prize," that seemed to get in the way. The highest
officials of England seem from time to time to have adopted this common
usage, but despite Lewes 's position on the Admiralty court and as a
Commissioner under the statute of 28 Henry VIII, his general notions appear
never to have been translated into legal documents or English legal practice.
To Sir Julius Caesar and other Admiralty judges, the concept of "piracy"
was important as part of the Civil Law of property applied through in rem
proceedings by English Admiralty courts. There seemed to be a tendency to
use the word in connection with property seized within Admiralty jurisdic-
tion without the authority of a commission or letters of marque and reprisal.
But the legal result of that usage was connected with the disposition of the
property, not the person who seized it. The usage did not reflect a concept of
criminal law, but of property law; the 16th and 17th century English Civil
Law version of the ancient Roman law of postliminium.
Notes
1. A.C. Spearing, Criticism and Medieval Poetry (2nd ed. 1972) 7.
2. Raffles, Lady Sophia, Memoir of the Life and Public Services of Sir Thomas Stamford Raffles . . . (London 1 830),
printing what appears to be a selection of the original letters of her husband, at p. 45-46.
3. Id., p. 48. The entire letter, beginning at p. 39, is worth reading, especially p. 45-46, 48, 77-82, for its
eloquent appeal to the concept felt by Raffles to be embodied in the word "pirate" in order to justify
political action, contrasting with its gingerly referral to the jurisdiction of the Malay Rajahs as the
enforcement authority to be applied. He apparently felt that what the young nobles were doing was not
"piracy" at international law, but should be a crime under the law of the Malay sultanates from which the
"pirates" apparently derived their licenses to interfere with peaceful shipping. See below Chapter IV.
4. 2 Phillipson, The International Law and Custom of Ancient Greece & Rome (1911) 370.
5. i, 367; vi, 58; ix, 588; xii, 64.
6. xv, 385, 426; xvii, 425.
7. i, 5-7, 8.
8. 1 Homer, The Iliad (A.T. Murray, transl.) (LCL 1971) 30-31, 266-267, 424-425; 2 id. 458-459; 1 Homer,
The Odyssey (A.T. Murray, transl.) (LCL 1960) 72-73, 320-321; 2 id. (1953) 102-103, 182-183; Thucydides,
The Peloponnesian War (C.H. Smith, transl.) (LCL 1969) 8-9, 12-13.
Origins 51
9. "To destroy utterly, sack, waste, always of cites," Liddell & Scott, Greek-English Lexicon (8th ed.
1897) 354.
10. "Booty, plunder," id. 881; the word is "Zeis" in the Epic dialect, id. 889.
11. Nestor's interview with Telemachus, Odyssey iii, 73, as translated by Murray in 1953, cited note 8
above. "E ti kata preksin e mapsidios alalesthe hoia te leisteres hupeir hala toi t'aloontai psuchas parthemenoi kakon
allodapoisi pherontes?"
12. Hesiod, The Homeric Hymns & Homerica (H.G . Evelyn-White, transl.)(LCL 1954), Hymn III toDelian
Apollo 352 at p. 356-357. O kseinoi, tines este? E ti kata . . . leisteres . . .? The first 177 lines of this Hymn are
addressed to the Delian Apollo; the rest, including the lines cited here, to the Pythian Apollo. Homer, The
Odyssey of Homer . . . (T.A. Buckley, transl. and notes) (1891) 349 note 1.
13. i,5. The formula is different, but again the word derives from "leisteia," not "peirato:" "[Djelousideton
te epeiponton tines eti kai nun, hois kosmos kalos touto dran, kai hoi palaioi ton poieton tas pusteis ton katapleonton
pantachou omoios erotontes ei leistai eisin, hos oute hon punthanontai hapaksiounton to ergon, hois te epimeles eie eidenai ouk
oneidizonton."
14. Alfred Zimmern, The Greek Commonwealth (5th rev'd ed.) (1931) (Oxford paperback ed., 1961), p.
237-238.
15. Autenrieth, Homeric Dictionary (R.P. Keep, transl.) (1885) 252.
16. Herodotus, [The Persian War] (A.D. Godley, transl.) (LCL 1931)462-463 (ii, 152): "... elthe chresmos
hos tisis heksei apo thalasses chalkeon andron apiphanenton."
17. Demosthenes, DeHalonneso, 2 On Postliminium, quoted (in Greek) in 2 Phillipson, op. cit. note 4 above,
at p. 375 note 2: "touton de ton logon, hos ouk esti dikaios, ou chalepon estin autou aphelesthai. Hapantes gar hoi leistai
tous allotrious topous katalambanortes kai toutous echurous poioumenoi enteuthen tous allous kakos poiousin. Ho de tous
lestas timoresamenos kai kpatesas ouk an depou eikota legoi, eiphaie, ha ekeinoi adikos kai allotria eichon, tauth heautou
gignesthai." The words "leistai" and "lestas" are translated "pirates" also by J.H. Vince. 1 Demosthenes,
[Orations] (J. H. Vince, transl.) (LCL 1954) 151-153. See also "/e5fon"atp. 156 translated "pirates" at p. 157.
On "leistrikos" as a form of political economy accepted as normal in ancient Greece see below and quotation
from Aristotle at note 26 below.
18. What is addressed here are sources focusing on Roman law and Roman perceptions. Since many
educated Romans were literate in Greek, and some of the leading historians of Rome, such as Plutarch and
Polybius, were of Greek heritage, writing in Greek, a simple distinction based on language would be
misleading.
19. 2 Cicero, Contra Verres II (L.H.G. Greenwood, transl.) (LCL 1953) iv, 21, at p. 304: "Fecisti item ut
praedones solent; qui cum hostes communes sint omnium ..." This passage is translated in the same work (p. 305):
" You behaved just as the pirates are wont to behave. They are the general enemies of all mankind ..." Cp. 2 J.B. Scott,
Law, the State, and the International Community (1939), p. 326: "Pirates . . . are the general enemies of all
mankind," citing Cicero, The Verrine Orations II, iv, 21. A more precise analysis of the word "praedones"
would seem unnecessary here; one etymological study is enough for one book. Derivatives of the Latin
word "praedor," "to make booty, to plunder, spoil, rob," Lewis & Short, rev'n, Freund's Latin Dictionary
(Andrews, ed.) (1879) 1417, are commonly translated "pirate" or "piracy."
20. 14 Livy, History of Rome ( A.C. Schlesinger, transl.) (LCL 1959) cxxviii at p. 159. The period described
is 38-37 B.C.
21. Id., p. 158: "Cum Sex. Pompeius rursus latrociniis mare infestum redderet necpacem, quam acceperat, praestaret,
Caesar necessario adversus eum bello suscepto duobus navabilus proelis cum dubio eventu pugnatio." Again, it would
seem unnecessary to delve into the precise usage of another Latin word, "latrociniis," whose relevance to
this study is marginal. Derivatives of the Latin word "latro," "hired soldier, brigand," Lewis & Short, op.
cit. note 19 above 1041, are commonly translated "pirate," "piratical," "piracy," etc.
22. The most important, repeated by several later translators and scholars to support the assertion that
"piracy " was a way of life to Homeric-Age Greeks, although the passage does not use the word "peirato" or
any of its derivatives in the original, is from the Odyssey, ix, 39-42: Odysseus is speaking:
Iliothen me pheron anemos Kikonessi pelassen, Ismaroi. Entha d' ego polin eprathon, olesa d' autous, ek polios d'
alochous kai ktemata polla labontes dassameth ', hos me tis moi atembomenos kioi ises.
The wind bearing me from Ilium made me approach the Ciconians in Ismarus; and there I laid waste
the city, and destroyed them. And taking their wives and many possessions out of the city, we
divided them, that no one might go deprived of an equal share . . .
This careful translation by T.A. Buckley in Homer, op. cit. note 10 above, 116, avoids the English word
"pirate."
23. Of course, Odysseus 's band was poetically a group of warriors without fixed base seeking to return
to Ithaka after the sack of Troy (Ilium). Although they derived their political existence from allegiance to
Odysseus, the "King" of Ithaka, their precise composition and Odysseus's own legal power to mount raids
52 The Law of Piracy
against towns not in communication or "at war" with Ithaka is not examined. Presumably to the author(s)
of the Odyssey, the question did not arise.
24. The sack of Troy is usually placed several centuries earlier by scholars. But M.I. Finley convincingly
argues not only that the fabled sack never took place, just as the stirring events of the epic Niebelungenlied and
Beowulf could never have taken place outside of poetic imagination, but, more importantly, that the world
reflected in the Homeric poems was the world of the historical tradition of their author(s), reflecting
realities of the 10th and 9th centuries B.C. M.I. Finley, The World of Odysseus (2nd rev 'ded., Pelican Books
1978) 48-49.
25. Finley, op. cit., p. 63, after quoting the passage in Homer translated by Buckley in note 22 above.
26. Id., p. 64. Aristotle mentions plundering [leistrikos] as one of five general categories of political
economy: "the pastoral, the farming, the freebooting [sic], the fishing, and the life of the chase [Hoi men oun
bioi tosoutoi schedon eisin, hosoi autophuton echousi ten ergasian kai me di' ullages kai kapelaeias porizontai ten trophen,
nomadikos, georgikos, leistrikos, halieutikos, thereutikos]." Aristotle, The Politics (c. 350 B.C.) 1256b, (E. Barker,
transl., 1946) 20 (1975 ed.) I, viii, 8.
27. J. Bronsted, The Vikings (1965), passim esp. p. 26-27. The word "Viking" seems to have an obscure
origin unrelated to attacks or attempts.
28. 2 Polybius, The Histories (W.R. Paton, transl.) (LCL 1954) iv, 68, p. 461 . In the original Greek the key
phrase is "Euripidas, echon Eleion duo lochous meta ton peiraton kai misthophoron ..."
29. "[Amyntas] . . . epephane paradoksos peiratais tisin, apestalmenois hupo Demetriou . . . hoi Rodioi biasamenoi ton
neon autandron ekurieusan, en hois en kai Timokles ho archipeirates." 10 Diodorus Siculus, [History] (R.M. Greer,
transl.) (LCL 1954) xx, 97, 5 at p. 400-401.
30. 10 Livy, [History of Rome] (E.T. Sage, transl.) (LCL 1935) xxxvii, xi, 6-7, p. 320-321: "Hinc Nicandro
quodam archipirata quinque navibus tectis Palinurum iusso petere ..."
31. See Plutarch's description of the same events at notes 36-39 below.
32. 14 Livy, op. cit. note 20 above, xcix, p. 122-123: "Cm. Pompeius lege ad populum lata perequi piratas iussus,
qui commercium annonae inter cluserant, infra quadragesimum diem toto mari eos expulit; belloque cum his in Cilicia confecto,
acceptis in deditionem piratis agros et urbes dedit." The Cilicians [Kilissi] had had an unsavory reputation at least as
early as pre-Aristotle Greece. See Demokos, "All the Cilicians are bad . . .," in The Greek Anthology (Jay
ed.) (Penguin 1981) No. 38 at p. 47.
33. 5 Plutarch, Parallel Lives of Greeks and Romans (C.B. Perrin, transl.) (LCL 1917) xxiv, p. 173-175.
34. Id., p. 175.
35. This Roman hegemony was achieved not by mere assertion or, indeed, by simple conquest, but in the
main by diplomacy and by treaty. See Livy, Rome and the Mediterranean (H. Bettenson, transl.) (Penguin
Classics \976), passim, for a lively English translation of the principal part of books 31-35 of Livy 's History.
The Roman hegemonial system involved military alliances in return for which Rome guaranteed the
personal position of the person invested as the embodiment of the legal power of the client state. A very
clear and evocative description is Sallust, The Jugurthine War (J.C. Rolfe, transl.) (LCL 1931, 1960) 14. A
lively modern translation is Sallust, Jugurthine War; Conspiracy of Cataline (S.A. Hanford, transl.) (Penguin
Classics 1963). See esp. the speech of Adherbal to the Roman Senate in 116 B.C. in the Loeb edition 14.1-25
at 14.7, p. 158; Penguin edition ch. IV, p. 47 sq. The British imperial system appears in many ways to have
been patterned on the Roman, with "recognition" under the British interpretation of international law
filling the place of investiture under the donation of the Roman Senate. Since the British interpretation of
international law was not necessarily identical with international law objectively derived, and the
municipal constitutional and inheritance law of the state principally involved actually determined
representational powers, not international law as such, the British practice amounted to the establishment
of British imperial law and the extinguishing of the foreign state as a person under international law; it led
to many wars when pressed as a matter of law beyond British political power since it was essentially a
political, not a legal, maneuver. Examples are dissected in Rubin, International Personality of the Malay
Peninsula (University of Malaya Press 1974) passim, particularly the acquisition of Singapore as analyzed at
p. 167-169, 253-277. The process is analyzed in some detail in chapter IV below.
36. Plutarch, op. cit. note 33 above, xxv, p. 177: "egrapse de' Gabinios, heis ton Pompeiou sunethon, nomon ou
nauarchian, antikrus de' monarchian autoi didonta kai dunamin epi pantas anthropous anupeuthunon."
37. Just what these "crimes" were, and against what law other than the Roman hegemony that did not
become law until after the conquest and the evolution of Roman conceptions of law under Augustus, is not
clear. Furthermore, it appears that their "unpardonable crimes" consisted of resistance to the Roman
sovereignty, since those who had participated in commerce-raiding but who surrendered seem to have
been freely and humanely treated as conquered enemies. This passage looks like an illogical interpolation
by a post-Augustan Greek scholar guarding his safety under a rigid Roman imperial system more interested
in justifications than in historical accuracy.
38. Plutarch, op. cit. note 33 above, xxvi-xxviii, p. 181-187. It has been suggested that the "pirates"
whom Pompey had settled at Dyme returned to sea roving about 45 B.C. Cicero, contemplating a trip to
Achaia in July 44 B.C., just four months after Julius Caesar's assassination in the Roman Senate chamber,
Origins 53
wrote: "It is not surprising that the Dymaeans, having been driven out of their land, are making the sea
unsafe. "6 Cicero, Letters to Atticus(D.R . Shackleton Bailey, transl. and notes) 151 (1968), letter XVI. 1 (409)
para. 3. In the original Latin: "Dymaeos agro pulsos mare infestum habere nil mirum. Id. 150. Shackleton Bailey
suggests that the "pirates" who had been settled there by Pompey in 67 B.C. and the Dymaeans were the
same folk, apparently "dispossessed by Caesar and returned to their old calling." Id. 281. Cicero does not
seem shocked or to have any reference to criminality when he refers to them as "pirates" a few days later in
another letter to Atticus: "It looks as though the legions can be dodged more easily and safely than the
pirates, who are said to be in evidence [. . . devitatio legionumfore videtur quam piratum, qui apparere dicuntur].' 'Id.
164-165, letter XVI. 2 (412). The "pirates" and the "legions" seem equally hazards to safe travel. The
"legions" referred to were presumably the forces under the control of Marc Antony seeking to wrest
control of Rome from the Senate after the death of Caesar. It was indeed one of the legionaries under
Antony's command who killed Cicero attempting to escape Italy about a year and a half later. See text at
note 47 below.
39. Id., xxix at p. 189-191: ". . . alia tous te peiratas ekselon etimoresato, kai ton Oktaouion . . . apheken."
40. Those results were essentially to put the losers at the discretion of the victors; the men were
frequently killed and the women enslaved. There were no trials, no accusations or defenses, no lawyers
involved. See Euripides, The Trojan Women (415 B.C.). See below.
41. Livy, History, i. 23. An excellent modern translation of Books I-V of this work is Livy, The Early
History of Rome (A. de Selincourt, transl.) (Penguin Classics 1971). See p. 59-60.
42. Id., p. 60-61. Livy's version may reflect more religious myth than political history. Modern research
in this area began with the reanalysis of Roman and Greek religious and political forms by N.D. Fustel de
Coulanges, La Cite Antique (\864). See Fustel de Coulanges, The Ancient City (transl. unknown) (Doubleday
Anchor Books 1956), Introductory note at p. 5-6.
43. See below.
44. Livy, op. cit. note 41 above, i, 32, at p. 69-71.
45. Id., p. 381-383.
46. Cf. Cicero, DeOfficiis, I, xi,36: "As for war, humane laws touching it are drawn up in the fetial code
of the Roman People under all the guarantees of religion; and from this it may be gathered that no war is
just [lawful?], unless it is entered upon after an official demand for satisfaction has been submitted or
warning has been given and a formal declaration made [Ac belli quidem aequitas anctissime fetiali populi Romani
iure perscripta est. Ex quo intellegi potest nullum bellum esse iustum, nisi quod aut rebus repetitis geratur aut denuntiatum
ante sit et indictum]. ,, Cicero does not say that Rome never fought a war without going through the religious
rituals, only that such wars should not be considered "lawful. " The Latin word "ius" in this context seems
to relate solely to the form of "law," not to "justice" or morality. The English distinctions between
"justice" and policy-based "law" are in many cases reversed in Latin, or simply disregarded; in this case
Cicero was obviously referring to the "jus fetiali" adopted as a matter of discretion into Roman positive
law and not reflecting "justice "except indirectly. To Cicero, "true law [vera lex] "was moral and overrode
the positive law in cases of conflict. Cicero, De Re Publica, III, xxii, 33. Grotius, writing in the 17th century
quoted Cicero's linking of the form of declaration with the phrase "bellum iustum" as an aspect of Roman
law to support the very different notion that to be "lawful" under his concept of the law between states
war must be declared publicly: ' 'Sed ut iustum hoc significatu bellum sit . . . ut audivimus, ut et publice decretum sit, et
quidem ita decretum publice ut eius rei significatio ab altera partium alteri facta sir. " Grotius, De lure Belli ac Pads (1625,
1646) III, iii, 5 (photographic reproduction 1925). F.W. Kelsey, translating this passage for the Carnegie
Endowment edition of 1925, correctly translates "iustum" as "lawful. " 3 Grotius, On the Law of War and
Peace (CECIL 1925) 633-634. This double transposition of a Roman positive law form into international
law, and the reversal of meaning between "ius" and "lex" as the correct word for "moral law" or
"justice" as distinguished from positive law, has created much confusion in later writings. In fact, Grotius
seems to have read Cicero entirely correctly; to Grotius a "declaration of war" was, despite the quoted
passage, clearly not required to bring into play the international law of war. An attack against a state or a
refusal of reparations when legally due were, to Grotius, equivalent to a declaration of war under natural
law, thus reducing the formal declaration to its place in positive municipal law. Id., Ill, iii, 6.1: "Naturali iure
aut vis illata arcetur, aut ab eo ipso qui deliquit poena deposcitur, nulla requiritur denuntiatio ." In fact, public
declarations of war in the days of the Roman empire were exceptional despite the religious ceremonies
given such emphasis by Livy and Cicero. 4 Dio Chrysostom, Discourses (Discourse 38, To the Nicomedians)
(H. Lamar Crosby, transl.) (LCL 1956) 48 at p. 67: ". . . while peace is proclaimed by heralds, wars for the
most part take place unproclaimed [eirene men epikerussetai, polemoi de hos epi to pleiston akeruktoi gignontai]."
Both "epikerussetai" and "akeruktoi" come from kerusso — to proclaim. It seems clear from the context that
Dio Chrysostom, discoursing shortly after his return from exile in 96 A.D. (id. 49; 1 id. (Cahoon introd.)
viii) apparently thought it common knowledge at that time that wars could be begun without formality,
but some formality was needed to end them. Grotius quoted this passage from Discourse 38 to support his
assertion that the law of nature allows people to dispense with the formality of declarations of war at least
in some cases. In fact, the fetial practice had died out long before Livy described it and had become a more
54 The Law of Piracy
political than religious ceremony fully a century or two prior to the time of Livy and Cicero. Ogilvie, A
Commentary on Livy Books 1-5 127-130 (1965).
In addition to overstating the importance of religious ritual to the legal classification "war" or "peace"
in practice, Cicero also seems to have confused to some extent the moral or legal right of a state to fight a
war and the right of an individual to assert soldiers' privileges under the law of that state. He quotes Marcus
Cato the elder for the proposition of Roman law that "the man who is not legally a soldier has no right to be
fighting the foe [negat enim ius esse, qui miles non sit, cum hoste pugnare]" (De Officiis, I, xi, 37), but does not assert
that an enemy is bound by the same rule, thus seems to imply that it is not a rule of natural law or
international law, only a rule of Roman municipal law applied to determine whether a Roman citizen was
exercising a military privilege to kill or not should the question arise.
47. The complex politics of Rome at this period are not important to the present analysis. Cicero had
sided with Pompey the Great against Julius Caesar at times, and with the Senatorial party of Brutus and
Cassius against the triumvirate of Marc Antony, Lepidus and Octavian that seized power on the death of
Julius. See 7 Plutarch, op. cit. note 38 above, 83 sq., esp. p. 206-207 making clear Plutarch's opinion of
Antony's responsibility for Cicero's death, and the reasons for it. See also 3 Cicero, Letters to Atticus cited
note 38 above, 179-181, letter VIII. 8 (131), paras 4-5, and letter VIII. 2 (152), penultimate paragraph, for
insight into Cicero's relations with Pompey in 50 B.C.
48. See note 19 above.
49. De Officiis, III, 29: ". . . Nam pirata non est ex perduellum numero definitus, sed communis hostis omnium: cum
hoc nee fides nee jus jurandum esse commune."
50. Grotius, op. cit. note 46, II, xiii, 15; Kelsey translation volume at p. 373. As Grotius interpreted the
quoted portion of Cicero's work, Cicero argued a non sequitur.
That there is no perjury if the ransom for life, which had been agreed upon even under oath, is not
paid to pirates, for the reason that a pirate is not entitled to the rights of war, but is the common
enemy of mankind, with whom neither good faith nor a common oath should be kept.
Cicero did not in fact mention the "rights" of war, and, as Grotius pointed out, there seems no reason why
an oath to God should not be kept with even brigands; it hardly seems logical or moral to construe a
violation of the law to lead to the conclusion that the violator is necessarily no longer protected by law.
Even convicted criminals are in fact legally protected in many ways in many legal systems, including that
of ancient Rome.
51 . See below. Nothing has been found in Cicero's writing or Plutarch's or any other Roman sources of
that time that can fairly be read to relegate "pirates" to overall treatment as criminals under Roman or any
other law in classical times.
52. Cicero, De Officiis III, xii-xvi.
53. 7 Plutarch, op. cit. note 33 above, 441 at 444 sq. Plutarch's narrative of the famous episode in the life of
the young Julius Caesar (he was 19 years old at the time) uses a derivative of the Greek work "peirato" in one
place only (i. 8 at p. 444), in placing the capture near the "island Pharmacusa, by pirates [peiraton], who
already at the time controlled the sea [ten Pharmakoussan neson hupo peiraton ede tote . . . katechonton ten
thalattan]." Later, these "pirates" are referred to as Cilicians [Kilissi] (ii, 2, p. 444). They thus appear to be
the specific people also involved in the Pompeian war of 67 B.C. No other passage has been found in which
the word "peirato" or any of its derivatives was applied at this time to any other people. It is interesting to
note that Suetonius in his recitation of the same incident (although placing it a few years later) does not use
the Latin word "pirata" or any of its derivatives at all: "While crossing to Rhodes ... he [Caesar] was taken
by pirates [praedonibus] near the island of Pharmacusa . . . [Hue . . . circa Pharmacussam insulam a praedonibus
captus est. . . .]." 1 Suetonius, The Lives of the Caesars (J.C. Rolfe, transl.) (LCL rev'd ed. 1928) i, 4 at p. 7.
Suetonius was writing about 120 A.D. Id., Introduction by Rolfe at p. xii.
54. Cicero, Selected Works (M. Grant, transl.) (Penguin Classics 1971) at p. 177 note 1. Among Cicero's
last works were 14 "Philippics" Against Antony. The revival of the "pirate" communities of the Eastern
Mediterranean was noted by Cicero in a letter to his friend Atticus. See note 38 above.
55. A convenient summary of dates, names and structure of the Justinian Digest and its place in the legal
literature is Nicholas, An Introduction to Roman Law (corrected ed. 1969). The dates and other general
information retailed here appear passim, esp. p. 30, 39-42.
56. Corpus Juris Civilis (Mommsen & Krueger text, Kunkel ed.) (1954), XLIX.15.19.2, Paulus, OnSabinus,
Bk. xvi: "A piratis aut latronibus capti liberi permanent." My translation is identical to that in 9 J.B. Scott, The
Civil Law (1932) at p. 184, except for the interpolation of the word "legally" to avoid the absurd reading
that captives are in fact free.
57. Corpus Juris Civilis XLIX.15.24: Ulpianus, Institutes: "Hostes sunt, quibus bellum publice populus Romanus
decrevit vel ipsipopulo Romano: ceteri latrunculi velpraedones appellantur et ideo qui a latronibus captus est, servus latronum
non est, nee postliminium illi necessarium est: ab hostibus autem captus, utputa a Germanis et Parthis, et servus est hostium
et postliminio statum pristinum recuperat. "
Origins 55
58. Id. L. 16. 118: Pomponius, Book II, Ad Quintum Murium: " 'Hostes' hi sunt, qui nobis aut quibus nos
publice bellum decrevimus: ceteri latrones aut praedones sunt."
59. It apparently dates back to Greek conceptions. See text and works cited at note 17 above.
60. See below at note 120.
61. The phrase appears to have gained currency as a shortening of the passage from Cicero quoted in
note 49 above. The source of the paraphrase "hostes humani generis" has not been found. Blackstone
attributed it to Sir Edward Coke. 4 Blackstone, Commentaries on the Laws of England (American Edition
1790), p. 71. The phrase appears in Coke, Third Institute of the Laws of England ( 1628) (first published 1644) p.
113: "pirata est hostis humani generis." But the form, as a Latin insertion in an English text, makes it look like a
stock phrase Coke was borrowing from another source. See note 201 below. Coke finished his Third Institute
in 1628 and died in 1634. The Third and Fourth Institutes were published at Parliamentary order from Coke's
notes ten years later, when it was felt that Coke's well-known views of the supremacy of the law to the
prerogatives of the Crown would help in the Parliamentary struggle against Charles I. Bowen, The Lion and
the Throne (1956) , p. 510. Another possible source for Coke's phrase is Sallust, op. cit. note 35 above, 81.1, in
which Jugurtha refers to the Romans themselves as "men with no sense of justice and of insatiable greed,
common enemies of all mankind [Romanos iniustos, profunda avaritia communis omnium hostis esse . . . ] " (Hanford
transl., Penguin ed. p. 113; LCL ed. p. 302).
62. This is not the place to analyze the Roman law of postliminium. Its modern descendant is visible in
the classical law of prize and salvage, and will be addressed as necessary in Chapter II below.
63. See note 35 and text at notes 2 and 3 above.
64. The earliest usages recorded by the Oxford English Dictionary are:
. . . 1387 Trevisa, Higden (Rolls) VI, 415 the "see theves" of Danes (L. Dani piratae); 1426 Lydg. De
Guil. Pilgr. 23963, I mene pyratys of the Se, which brynge folk in pouerte. 1430-40 - Bochas l.xii
(1544) 38 this word pirate of Pirrhus toke the name. 1522 J. Clerk in Ellis Orig. Letti. Ser III. 1. 312,
Pirats, Mores and other Infidels . . .
OED "O-P" p. 901. Higden (or Higdon) and the Polychronicon are explained in 13 Encyclopedia Britannica
(11th ed.) 454 (1910); John de Trevisa's translation and its place in the development of the English language
is put into perspective in 9 id. 592. Trevisa's translation was apparently issued in 1387; there seems to be
some petty inconsistency in the secondary sources about the date. As noted in the text above this note, it is
not significant for present purposes, since the word "pirate" does not in fact appear in the English
translation by Trevisa and the equation of the Latin "piratae" with the Middle English "see theves" appears
to have no legal, or even any clear vernacular, meaning worth preserving except as an illustration of
picturesque speech and some surviving underlying sense of the impropriety by the law of England as
perceived in the 14th century of the activities of Vikings about three centuries earlier.
65. Braudel, La Mediterran'ee et le monde m'editerran'een a I'epoque de Philippe II (1949). Because of the
importance of the specific words I have translated the French original myself despite the existence of a fine
English translation by Sian Reynolds of the 1966 2nd (revised) edition of Braudel's masterpiece. Braudel,
The Mediterranean and the Mediterranean World in the Age of Philip II (S . Reynolds, transl.) (1973). In the original,
p. 694, the text is as follows:
Surl'Ocean, au XVIe siecle aussi boulevers'e que la mer Int'erieure par les pirates, et des pirates peut-etre plus cruels,
la course prend un masque, se disguise en guerre semi-officielle avec la multiplicity des lettres de marque. . . . On a dit
et r'ep'et'e que lapiraterie etaitfille de la Mediterran'ee. Image juste, mais souvent perdue de vue: les historiens n'ont
d 'attention et de reprobation que pour les corsaires barbaresques. Leur fortune, qui fut grande, derobe le reste du
paysage. Tout s'en trouve deform'e. Ce que Yon designe, chez les Barbaresques, sous le nom de piraterie, s'appelle
h'ero'isme, pur esprit de croisade chez les Chevaliers de Make et ces non moins feroces coureurs de mer quefurent les
Chevaliers de Saint-Etienne, bases a Pise par les soins de Cosimo de Medicis.
66. Id. For convenience, citations to Braudel below will be used to refer to his work as translated by
Reynolds, and the Reynolds translation will be quoted without closer analysis of its use of the word
"pirate" or its derivatives.
67. Id., p. 749.
68. Id., p. 728.
69. Id., p. 822: "As early as 1552 and again in 1565, Jewish protests had singled out for complaint the ships
of the 'most evil monks' of Malta, that 'trap and net which catches booty stolen at the expense of Jews',"
citingj. HaCohen, Emek Habkha, la valteedespleurs... 172 (1881) for the inner quotes. Braudel, op. cit. 822 note
371.
70. Id., p. 870.
71. Id., pp. 883-884.
72. Cf. Defoe, Robinson Crusoe ( 1719) ch. 1. Defoe is also supposed to be the author of A General History of
the Pirates (1718) under the pseudonym of Capt. Charles Johnson.
56 The Law of Piracy
73. Chamberlain, The (Chamberlain Letters: A Selection . . . (E.M. Thomson, ed.) (Capricorn Books 1966) 12
(letter no. 16 to his friend Dudley Carleton in the standard collection edited by N.E. McClure).
74. Id. 124 (letter no. 132 to Carleton dated 29 January 1612).
75. Id. 226 (letter no. 434 to Carleton dated 12 July 1623).
76. Naval Songs and Ballads (NRS, Vol. 33) xx-xxi, 25-29 (1907). Rising national pride, so evident in
Shakespeare's historical plays of this period, particularly Richard II, II. i.40 (1595) (John of Gaunt's paean to
England) and Henry V (1599), led Captain John Smith in the last chapter of his Travels to attribute the war
capabilities of the Turks and Moors to English renegades, whom he calls "pirates." That view found its
way into English folklore, apparently through the writings of Andrew Barker, A True and Certaine Report of
the Beginning, Proceedings etc. ofCaptaine Ward and Danseker, the Late Famous Pirates (1609), cited in Sir Godfrey
Fisher, Barbary Legend (1957) 160. According to Fisher, Danseker was executed by the Dey of Tunis in 1611.
Id. p. 142. Ward died in the Tunis plague of 1622-23. Id. p. 161. The idea that the Turks, whose fleets
dominated the Mediterranean under Suleiman the Magnificent until their defeat at the battle of Lepanto in
1571, had to learn military tactics or seamanship from an Englishman, seems at least something of an
exaggeration. There was in Pact a revolution in maritime ventures at this time, in which new sail
technology made ocean voyages feasible that had been too risky before, and the Mediterranean Muslim
powers rejected it in favor of old, maneuverable, short-range galleys. But that change seems irrelevent to
the activities of Ward and Danseker. Parry, The Age of Reconnaissance (1964) 69-84; Hess, The Forgotten
Frontier (1978) 208-209.
77. Chamberlain, op.cit. note 73 above 281 (letter no. 374 to Carleton dated 10 March 1621): "We hear
that Sir Robert Mansell and his fleet have done just nothing, but negotiated with those of Algiers for certain
slaves."
78. Naval Songs and Ballads, pp. 31-32, "The lamentable cries of at least 1500 Christians: Most of them
being Englishmen ..."
79. Id., pp. xxii-xxiii.
80. See below.
81. Calendar of State Papers, Colonial Series, East Indies, China and Japan, 1622-1624 (Sainsbury, ed.) No. 143at
p. 64 (1878, 1964). This is in a report dated 27 August 1622 from the British East India Company's Council in
Batavia (Richard Fursland (President), Thomas Brockedon and Augustine Spaldinge) to the Company in
London.
82. Id., No. 367 at p. 196. Fursland had died and was replaced on the Council by Henrie Hawley and John
Goninge; Thomas Brockedon apparently acted as President.
83. Id., No. 368 dated 14 December 1623 at p. 202, report to the Company in London.
84. Id., No. 565, p. 365, signed by Brockedon, Hawley and Goninge.
85. Id., No. 303, p. 125, Minutes of meetings concluding 23 June 1624. Eventually, the Company paid two
tenths to the King in order to obtain the release of their vessels from arrest by the Admiral.
86. Id., No. 481, p. 294, Minutes dated 23-25 June 1624.
87. In addition to Braudel, loc. cit. above note 65, see Fisher, op. cit., note 76 above, esp. pp. 137-145 and
sources cited there.
88. Belli, De Re Militari et Bello Tractatus (1563 ed. photographically reproduced) (CECIL 1936) Part II, ch.
xi: ". . . excipi Piratae . . . qui enim omnes habent pro hostibus, debent ab omnibus expectare rependi vices ..." The
translation by H.S. Nutting is published in another volume of the same set. The English excerpts in the text
above this note are from p. 83 of the translation volume by Nutting. On the post-glossators, see Nicholas,
op. cit. note 55 above at p. 47.
89. Belli, op. cit., (Nutting, transl.) p. 83. The Latin (p. 39) refers to persons who "sint extra omne legum"
but does not use any single word for "outlaw."
90. Id., p. 88, Part II, ch. xiv. Belli quotes Cicero verbatim. See note 46 above. See also note 50 above and
note 124 below, where the position of Grotius and his criticism of this passage by Cicero are set out more
fully.
91. Ayala, De lure et Officiis Bellicis et Disciplina Militari (J. P. Bate, transl.) (CECIL 1912) I, ii, 15. The
original says:
Hinc iura belli, captiuitatis, & postliminij, quae hostibus tantum conueniunt, non posse rebellibus convenire,
consequens videtur: sicut nee piratis & latronibus (qui hostium numero non continentur) conueniunt, quod ita intelligi
debet, vt ipsi iure belli agere non possint: ideoqi dominium rem captarum non acquirunt, quod hostibus tantum
tributum est in ipsos vero iure belli faeuire, multoque magis quam in hostes, licet: suntenim odio digni maiore, & non
debet esse melioris conditionis rebellis & latro, quam legitimus & iustus hostis.
Oddly, the Latin version is photocopied from the first edition of 1581, but the translation seems to be based
on the 1597 edition.
92. Ayala's father was a Spaniard, married to a Belgian and resident in Antwerp for some 16 years before
the birth of Balthasar in 1548. The Ayala family were very well connected with the Habsburg monarchy.
Origins 57
The Act of Abjuration was passed by the States General of the Netherlands in 1581. Until 1648, Spain
denied the legal labels resulting from the ability of the Netherlands to maintain its independence militarily.
The standard works on this watershed episode in European history are J.L. Motley, The Rise of the Dutch
Republic (1856) and The United Netherlands (1860).
93. Gentili, De lure Belli Libri Tres (1612) (J.C. Rolfe, transl., introd. by Coleman Phillipson) (CECIL
1933) 12a-14a.
94. Id., Book I, ch. ii. The English translation throughout is by Rolfe. The Latin is from the
photographic reproduction of the edition of 1612 in 1 Gentili, op. cit. Rolfe 's translation of "iusta" as "just"
seems very dubious. See note 46 above.
95. Id., p. 22, quoting the passages from Ulpian and Pomponius set out in notes 57 and 58 above. In
Gentili's quotations as in the originals, the word "pirata" or its derivatives does not appear; those debarred
from entering the legal state of war are termed "latrunculi" or "praedones." Thus the Rolfe translation of
Ulpian, "All others are termed brigands or pirates" (p. 15) seems a serious mistranslation of Gentili's
quotation from Ulpian: "caeteri latrunculi, vel praedones appellantur." Also, Gentili's conclusion immediately
following the quotations from Pomponius and Ulpian, "That is to say, the war on both sides must be public
and official and there must be sovereigns on both sides to direct the war [Publica ergo esse artna vtrinq; oportet, &
utrinq; esse Principes, qui bellum gerant]," seems a non sequitur.
96. Id., ch. iv.
97. Id. Again, Rolfe 's translation seems imprecise; Gentili did not say that Pomponius and Ulpian
actually came to that conclusion, but that that legal conclusion flowed from their definition.
98. Id. "Piratae omnium mortaliu hostes sunt communes. Et itaque negat Cicero, posse cum istis intercedere iura belli. "
99. Id. "Si praedonibus pactum pro capite pretium non attuleris, nullafrausest . . ." Rolfe translation: "If you do
not pay brigands the price demanded in exchange for your life, you do no wrong ..."
100. Id., last lines of the chapter:
Sed quid sentimus nos de his Gallis, qui capti postremo bello Lusitanico ab Hispanis, & tractati sunt non quasi iusti
hostes? Tractati sunt quasi piratae: qui Antonio militarent, pulso iam de regno vniuerso, & in regem agnito ab
Hispanis nuqua. At ipsa historia vincit, eos non fuisse piratas: non dico per argumentum ductum a numero, &
qualita te virorum, ac nauium; sed per literas,quas regis sui ostendebant, cui regi seruiebant, non Antonio, esti
maxime pro Antonio, quod illos non tangebat.
101. See text at note 93 above. A collection of Gentili's briefs before the English Royal Chamber was
published posthumously in 1613. Gentili, Hispanicis Advocationis (1613, 1661), reproduced photographically
by CECIL in 1921. The English translation of the 1661 text published in Vol. II of the same set is by F.F.
Abbott.
102. See, e.g., letter of 1295 (23 Edw. I) authorizing an English captain to make capture [licentia marcandi]
up to the value of the goods spoiled by "the men and subjects of the realm of Portugal." 1 Marsden, ed.,
Documents Relating to Law and Custom of the Sea (NRS, Vol. 49) (1915) 38.
103. The Oxford English Dictionary definition is in Vol. VI, p. 179. It defines "marque" as meaning merely
"reprisal" and traces it back to medieval Latin "marcare," "to seize as a pledge." The first English use
given is the law-French of a statute, 27 Edw. Ill, stat. 2 c. 17 (1353) quoted in part in the text above this note.
See note 176 below. The American Heritage Dictionary, pp. 751, 1529, traces the word back to the Indo-
Germanic root "merg-": "Boundary, border" via Old Provencal "marcar," "to seize." The phrase
"marquandi sue gagiandi" ("marque and recapture"?) appears in a document of 1293 cancelling a similar
license that had apparently been issued earlier. 1 Marsden, op. cit., p. 19, 38-39.
104. The practice of holding prize courts only in the territory of the capturing country as an aspect of
belligerency does not seem to have become clearly established until somewhat later. 2 Marsden, op. cit.
(NRS, Vol. 50) (1916) xii.
105. Gentili, Hisp. Adv. cited note 101 above, Book I, ch. iv at p. 15.
106. Id., ch. xv at p. 68: ". . . stendi piratis locum oportunissimum navigationibus propinquissimum Hispanicis,
habitatum mercatoribus Anglis, ubipraedas suas possint suis distrahere, sijusistud constituitur fisci illus terrae. Hoccinepro
mercaturaV The translation by Abbott seems unnecessarily awkward.
107. Id., ch. xxii at pp. 101-105. This is not the place to argue substance, but it might be noted that
Gentili's argument seems to confuse liens based on salvage-like services with property rights derived from
a thief. The first derive from principles well known in Gentili's time. Aside from the analogy to
postliminium and the Roman law principles set out in part in Justinian's Digest and mentioned above, the
Laws of Oleron, cited at note 150 below, articles 3, 22 and 30, had already been part of the Law of England
for about 400 years and established the basis for the modern English law of maritime salvage.
108. See below, Chapter II.
109. He is not specific, but seems to be referring to ch. iv cited at note 105 above.
110. Id., ch. xxiii, pp. 105-112 at p. 112: ". . . quoderipitur nostris negotiatio Tunetana, Algeriana, alia non una per
haec Venetorum dicta, quod sint illae civitates nil aliud nisi receptacula piratarum, ned in illis sint nisi piratae, & sint in illis
ipsi quoque magistratus piratae. "
58 The Law of Piracy
111. Gentili's approach, which might be considered the birth of "positivism" as an operating theory of
international law, is most lucidly elaborated and the role of "recognition" harmonized with current
practice by Kelsen, Recognition in International Law, 35 AJIL 604 (1941), and Gross, States as Organs of
International Law and the Problem of Autointerpretation, in Lipsky, ed., Law and Politics in the World
Community (1953) 59-88 reprinted in 1 L. Gross, Essays on International Law and Organization (1984) 367.
112. Dumbauld, The Life and Legal Writings of Hugo Grotius (1969)3-4; "Voitale miracle deHollande,' 'id., at p.
56 note 165.
113. Id., p. 23, 58. Grotius died in 1645, reportedly regretting that "by undertaking many things, I have
accomplished nothing!" Id., p. 18.
114. Id., p. 16.
115. 2 Grotius, op. cit. note 46 above, Book III, chs. i and ii (p. 630-631).
116. Id., p. 631. The key passages in the original Latin are: " Non autem statim respublica aut civitas esse desini,
si quid admittat injustum, etiam communiter, nee coetus piratarum aut latronum civitas est, etiamsi forte aequalitatem
quandam inter se servent, sine qual nullus coetus posset consistere. Nam hi criminis causa sociantur: illi etsi interdum delicto
non vacant, juris tamenfruendi causa sociati sunt, et exterisjus reddunt ..." 3 Grotius, Dejure Belli ac Pads ( Whewell
ed.) Ill, ii, 1 (1853) p. 54-55. Unless the context indicates otherwise, all citations below to Grotius's Latin
original text are taken from Whewell's edition, and all English translations are by Kelsey.
117. See above note 57.
118. Caesar, De Bello Gallico, VI, xxiii; Tacitus, De Morib. Germ. ch. 46, Ann. xii, 27, Hist, iv, 50. These
citations by Grotius do not seem particularly strong to support his point, but the point itself, that the
Germanic tribes were treated as legal enemies in war despite the Roman opinion that their political and
social organization was contemptible, is beyond dispute.
119. Appian, Bell. Illyr. ii; 9 Plutarch, op. cit. above note 33.
120. It was pointed out in the text above at note 57 that Justinian's Digest addresses the legal inability of
"pirates" to effect a change in the personal status of captives, but extends that legal incapacity in the case of
property only to "latrones" and "praedones."
121. Grotius, op. cit. Book III, ch. iii, sec. ii para 3.
122. Grotius does not say how this comes about legally, implying that it is not by "recognition, "but by
the force of natural law.
123. Grotius, op. cit. Book III, ch. iii, sec. 8 last sentence, quoting with approval St. Augustine, De Civ.
Dei IV, iv: "[H]oc malum si in tantum perditorum hominum accessibus crescit, ut et loca teneat, sedes constituat, civitates
occupet, populos subjuget, regni nomen assumit [If by accessions of desperate men this evil grows to such
proportions that it holds lands, establishes fixed settlements, seizes upon states and subjugates peoples, it
assumes the name of a kingdom]." It is hard to see how this description could not be applied to the li peiraton"
of 67 B.C.
124. Grotius used the word "pirata" or its derivatives in five other places in Dejure Belli ac Pads: (1) In
confuting Cicero as mentioned at note 46 above (Book II, ch. xiii para. 15(1)); (2) In a passing reference to
Roman taxes for Red Sea navigation beingjustified by the expenses of suppressing "piracy" (Book II, ch. iii
para. 14); (3) In a passage slightly amending Cicero's position that oaths to enemies must be kept while
oaths to "piratae" need not be kept — Grotius eviscerates Cicero's entire polemical point by adding "unless
an oath prevents," i.e., unless you have promised the pirate that you would keep your word to him! (Book
II, ch. xvii para. 19; cf. above note 50); (4) In a passage approving the exchange of legation with rebels but
not with "pirates and brigands, who do not constitute a state [Piratae et latrones, qui civitatem nonfaciunt]" and
therefore do not come under the rule of the law of nations — but this rigid position is immediately softened
by observing that "Sometimes, nevertheless, persons of such character obtain the right of legation on the
strength of a pledge of good faith [Sed interdum tales qui sunt, just legationis nanciscuntur fide data]" (Book II, ch.
xviii, para. 2(3)); and (5) In a possible slap at Gentili through mention of the record showing Pompey to
have concluded his war with the pirates "in great part by means of treaties [Atqui belli piratici magnam partem
Cn. Pompeius pactionibus confecit] ,y (Book III, ch. xix para. 19(2)(2)). Curiously, the indexes to neither the
Kelsey translation nor the Whewell edition carries a reference to the first of these uses.
125. Id. Ill, ix, 19(2). This language appears in the Amsterdam (Blaeu) edition of 1632. I have not been
able to check the 1631 and 1625 editions. It appears in all later editions.
126. In 1604 Grotius drafted an argumentative brief, completed in 1606, to justify the Dutch seizure in
the Straits of Singapore of a Portuguese "prize" at a time when the Dutch did not claim belligerent rights
against Portugal despite the union of the Portuguese and Spanish dynasties between 1580 and 1640. Basing
his argument on a "natural" right of trade and thus the inadmissability in law of Portuguese monopoly
treaties with the Sultans of the Malay Archipelago, Grotius concluded that the Portuguese actions were
criminal and that Dutch countermeasures could properly include captures in reprisal. 1 Grotius, De lure
Praedae Commentarius (1604) [sic] (Williams and Zeydel, transl.) (CECIL 1950) 327. The entire background is
conveniently set out and Grotius's principal arguments paraphrased and summarized in Dumbauld, op. cit.
23-56. The broader historical background is set out in Rubin, International Personality of the Malay Peninsula
(1974) 29-32.
Origins 59
127. In the Williams and Zeydel translation the word "pirate" is used where, in note 126 and here, I have
used the word "criminal." It is not certain that either is correct. Volume II of the set contains a
photographic reproduction of the actual Latin manuscript, and in the page corresponding to p. 327 of the
translation in Volume I, (2 Grotius, De lure Praedae Commentarius, p. 147) I cannot find the word "pirata" or
any of its derivatives. The word "latro" does appear but not in a place that seems to correspond to either of
the two places in which the translators have used the word "pirate. " Although Grotius' handwriting seems
clear enough, I am not prepared to match my amateur acquaintance of Latin and my almost total
non-acquaintance with Dutch calligraphy of 1604-1606 against the expertise of the translators. Still, for the
reasons set out above, it would be well to be cautious about this translation and its use of the word "pirate. "
128. Grotius, Dejure Belli ac Pads Book II, ch. iii, para. 13(2).
129. E.g., Athenian claims asserted against Megara, Thucydides, op. cit., IV, cxviii, and Dio Cassius's
mention of "all the sea which belongs to the Roman Empire," Roman History, XLII, v.
130. The evolution of "England" to "Great Britain" and the "United Kingdom" (including Scotland,
which has its own legal history and current municipal law), involves a political narrative of daunting
complexity. Fortunately, it is not necessary for present purposes. It was the law of England, not the law of
Great Britain or the United Kingdom, that became the most influential set of prescriptions and was
administered by the most wide ranging system of naval activity and courts, and which lies at the roots of
American conceptions of the interplay between the municipal law of "piracy " and international law. The
law of Great Britain and of the United Kingdom will be referred to as appropriate later in the narrative.
131. It is not proposed in this place to trace the word or the concept (if there is any discrete concept) of
"piracy" in non-legal English usage. It might be useful to those so inclined to mention that the earliest trace
of the concept seems to be in the epic Beowulf (eighth century A.D.). In line 242 there is reference to the
sea-watch guarding the Danish coast that "lathra naenig/mid scip-herge sceth than ne meahte [none of our enemies
with their fleet of ships might harm us]." Chickering, Beowulf ; A Dual Language Edition (1977)63. The word
"lathra" is translated "enemies" by Chickering. It is commonly translated "pirates." Cf. translation by
David Wright in Penguin Classics edition (1957) at p. 32. Wright also translates as "pirates" (p. 33) the
word "feonda" in line 294. The similarity of the word "/af/zra" to the Latin "/afro" is too clear to be missed.
The Latin word "pirata" or its derivatives does not appear in Beowulf.
132. Regina v. Keyn (frequently indexed as R. v. Keyn, Reg. v. Keyn or The Queen v. Keyn) [1876] L.R.
2 Exch. Div. 63, reprinted at length in 2 British International Law Cases (BILC) 701 at 756-800. That case
turned on the question of whether the statutory municipal laws of England applied to acts by foreigners on
board foreign vessels in waters less than three miles from the English coast in the absence of a clear
indication from the Parliament that the law was intended to apply beyond the land, except in British flag
vessels. Fourteen judges heard the arguments. One died during the course of the proceedings and the final
decision, that the law of England did not apply to foreigners in foreign ships even in England's territorial
waters in the absence of a clear expression of Parliament's intention, was carried by a 7-6 majority with
substantive views expressed by nine of the judges in individual opinions.
133. Marsden, ed., Select Pleas in the Court of Admiralty (Selden Society, Vols. 6 and 11) (1894, 1897) and
Marsden, ed., Documents Relating to the Law and Custom of the Sea (NRS, Vols. 49 and 50) (1915, 1916), cited at
notes 102, 104 above.
134. Cockburn relied heavily on Hale's Pleas of the Crown, but does not seem to have checked Hale's
sources. Hale, Pleas of the Crown (1685 ed.) 77, in fact refers to "Piracy" and "Depredation upon the Sea" as
a species of "petit Treason, if done by a [British] subject. " Hale implies without any evidence what it was
triable at Common Law until the Statute of Treasons, 25 Edw. Ill statute 5 c. 2 (1352). But his source is
clearly Coke, who in his Third Institute, emphasized not the "piracy" aspect of the offense, but its
relationship to the law of "treason," limiting the jurisdiction of British Common Law courts to the
jurisdiction they had in other cases of "petit Treason" and in no way implying any purview over the acts of
foreigners outside of England. See note 201 below. Aside from this possible unintended implication in Hale,
there was no doubt that Hale knew that the offense of "piracy " was triable only at Civil Law, not Common
Law, in England from 1352 to 1536:
Since that Statute [of 1352] an offence triable by the Civil Law until 28 H. 8.15 [1536].
The Stat. 28 H. 8 alters not the offence; but it remains onely an offence by the Civil Law: and
therefore a pardon of all Felonies doth not discharge it: but it gives a trial by the course [i.e.,
procedures] of Common Law: ... It extends not to Offences in Creeks or Ports within the Body of a
County, because punishable by the Common Law.
"Civil Law" was the body of law administered by Admiralty and some other non-Common Law courts of
England. See below. Thus, to the degree Cockburn meant to imply that "piracy" in any way pertinent to
the case of foreign actions on board a foreign ship was historically an offense against English Common
Law, he was certainly wrong with regard to actions after 1352, and probably wrong with regard to actions
before then.
60 The Law of Piracy
135. 18 Edw. II (1325) and 25 Edw. Ill (1352).
136. 2 BILC 759.
137. 1 Marsden, Documents at p. 99-100 note 1.
138. Id. Table of Contents regarding p. 12, headnotes at p. 2, 6, 10,31, 46, 74, 89, 136, 371 , 388, 391 . This
list is not exhaustive.
139. E.g., Holdsworth, A History of English Law (1922-1928).
140. Since in some cases Marsden modernizes the spellings, and in others he seems to prefer what seem
quaint and false antique spellings, it is impossible to be certain about the accuracy of his reprinted
"original" texts without duplicating his entire research; a patent impossibility at this time.
141. 1 Marsden, Documents 2.
142. Id., p. 7.
143. Id., p. 10-11.
144. Id., p. 8 and 69. Marsden interprets these documents of 1276 and 1341 as involving the King in suits
before his own Common Law courts for a share of the value of a "prize" taken by English seamen without
license of the Crown. The King apparently lost.
145. Id., p. 19, 38-39. See notes 102 and 103 above.
146. Id., p. 19 (revoking a letter of "marque or reprisal [marquandi seu gagiandi]" in 1293); 38-39 (informing
the administrators of the realm of the proper issuance of letters of marque by "our nephew, John of
Brittany" in 1295); 88-89 (transferring the trial of English malefactors from the Common Law courts to the
jurisdiction of the Admiral's court because the robbery had occurred at an unspecified place at sea, not
within any particular shire of England in 1361 — it is not clear whether this case involved any foreigners or
letters of marque).
147. Loc.cit. note 143 above.
148. Id., p. 84-88.
149. Id., p. 88-89, cited note 146 above.
150. 1 Peters, Admiralty Decisions . . . (1807) Appendix, p. iii.
151. 1 Marsden, Documents, pp. 100-101: "qui malefactores, et pads nostre perturbatores diversas roberias
depredaciones sediciones ac interfectiones' '; English by Marsden.
152. Id. p. 101-102: ". . . legem et consuetudinem regni nostri Angliae et legem maritimam."
153. Id., p. 132-134. The Latin original uses the word "pirata" (p. 135). I omit mention in the text of a
treaty of 1414 between Henry V and the Duke of Brittany which Marsden translates as containing an
obligation not to "receive any traitors, fugitives, banished men, pirates, or exiles. "Id., p. 127-128. As noted
above, W irsden's translations are not always reliable; Marsden does not quote any Latin or French text and
it is unliicely that the original was written in English; nor is Marsden's reported English version the English
of the time of Henry V.
154. Id., p. 145-146.
155. Id.
156. Id., p. 146-147.
157. Id., p. xv, xviii.
158. Id., p. 149, where it is indicated that the Admiralty courts had been allowed to atrophy and were
revived only in 1520.
159. 27 Hen. VIII c. 4 (1535), in 4 Pickering, The Statutes at Large (1763) 348 sq.
160. Id., 348-349. The 18th century English must be Pickering's transliteration. The original language is
not given in this source. Presumably it was identical with the language of the Preamble to 28 Hen. VIII c. 15
(1536). See below.
161. 4 Pickering, op. cit., 441-443; 26 AJIL Spec. Supp. 913-915 (1932). Reproduced in Appendix LA below.
162. See note 134 above; note 201 below. See the laws of Oleron, cited note 150 above, arts. V-VII,
XII-XIII, XIX. The blend between mere contract service and a status relationship entered into by contract
(as the feudal relationship was entered into by contract forms also) is too complex to analyze here. See
Pollock & Maitland, The History of English Law (2nd ed.) (1898) passim.
163. "Mutiny" enters the legal vocabulary in England only with the adoption of the Mutiny Act of 1689,
1 Will. & Mary c. 5 (1689), referring not to mariners but to soldiers who "excite, cause, or join in any
mutiny or sedition in the army, or shall desert their majesties' service in the army."
164. Op. cit. note 161 above.
165. "A mere common crime, however wicked and base, mere wilful homicide, or theft, is not a felony;
there must be some breach of that faith and trust which ought to exist between lord and man, " 1 Pollock &
Maitland, op. cit. note 162 above, 304. By Coke's time "felony" had come to cover all serious Common Law
offenses, but not Admiralty offenses and not treason, which had become a statuatory offense with its own
procedures. See Coke, Third Institute 15; note 201 below; Chapter II text above notes 4-33. See also 2 Pollock
& Maitland, op. cit. 502. As to the relationship between "trespass" and "felony," see id. 511-512.
166. The precise territorial boundary between Admiralty jurisdiction and the Common Law jurisdiction
evolved over time. The first boundary was merely between things done upon the sea and things done within
Origins 61
the realm. 13 Rich. II c. 5 (1390). Within two years Parliament had decided a clearer line was needed, and
drew it at the bridges nearest the mouth of the river, offenses upstream belonging to the Common Law
courts, because infra corpus comitatus, offenses downstream to the Admiralty. 15 Rich. II c. 3 (1392). An
excellent summary of the evolution of English and American statutory law and the struggle for jurisdiction
between the Common Law judges and Admiralty is in Robertson, Admiralty and Federalism (1970) 28-64. For
convenience, and because the details of that struggle are only peripherally interesting to this study, I have
referred generally to "navigable waters" as the extent of Admiralty jurisdiction with specific details given
only where pertinent to particular incidents or questions relating to the definition and treatment of
"piracy."
167. Cf. Sir William Scott in the Hercules [1819] 2 Dods. 363, 165 Eng. Rep. 1511 at p. 1517; 26 AJIL Spec.
Supp. 910 (1932).
168. On the origins and modern reflections of the Civil Law, see Nicholas, op. cit. note 55 above, p. 2;
Admiralty actions based on the adjudication of property rights, actions in rem, trace back to Roman law,
thus Civil Law, concepts. Id., p. 98-103. The experts in Civil Law in England were called "civilians," and
sharp distinctions with elements of jealousy are evident in the attitudes of Common Law judges to the Civil
Law and the civilians at this period. See Lord Coke's references in Palachie's Case (1615) translated in the
text after note 194 below.
169. 2 Marsden, Select Pleas, p. 84-86.
170. Like Gentili (see text at note 93 above), Caesar was Italian by birth. He was the leading British
Admiralty judge, 1584-1605. 3 Dictionary of National Biography (DNB) 656.
171. 2 Marsden, Select Pleas, p. 161. Sir Julius simply recited as if proved that the vessel was "piratarum
super alto mari infra jurisdictionem marittimam Admirallitatis Anglie." He did not define "pirate," or "high seas,"
or his conception of the Admiral's jurisdiction as it might have applied in the case.
172. 1 Marsden, Documents, p. 298. The holding that "he is [et esse]" (lit.: "and be") a "pirate" seems
unsupported by any reference to operative facts. It is not known why Marsden did not translate those two
words in his transcription quoted here.
173. Apparently the same person that had become notorious in English folk ballad at about this time. See
text at note 76 above.
174. 1 Marsden, Documents, pp. 373-373.
175. Molloy, De Jure Maritimo (1677), Book I, ch. iv, para, xxi, p. 12. "Prohibited" meant that a legal writ
of "prohibition" would issue from a Common Law court forbidding further Admiralty proceedings. The
procedure was popularized in the struggles between the Common Law judges led by Sir Edward Coke and
the prerogatives asserted by judges of other courts, of which there were many, in the early 17th century.
The fullest and probably still most readable and accurate summary of the scope of authority of the various
English courts of the time is Coke, Fourth Institute, cited at note 61 above. A "market overt" was merely a
market in which merchants displayed their wares and sold them to any buyer. Originally defined to include
only fairs and staples, by the end of the 18th century at the latest it included all the open shops in London all
days except Sundays. The law permitting a merchant in a market overt to pass good title to stolen goods,
including goods stolen by "pirates" (there seems to have been no distinction between goods stolen at sea or
on land at the time the basic rule was reduced to statute in 21 Henry VIII c. 11 (1529)), was regarded as
"calculated to answer the necessary ends and security of public commerce." 2 Wooddeson, A Systematical
View of the Laws of England (1794) 431. The rule had an exception in the case of goods stolen either on land or
at sea if the thief were actually caught or convicted. Id. p. 412.
The statute of 1529 said:
. . . That if any felon or felons hereafter do rob, or take away any money, goods, or chattels, from
any of the King's subjects, from their persons or otherwise, within this realm, and thereof the said
felon or felons be indicted . . . and found guilty therefor . . . that then the party so robbed, or owner,
shall be restored to his said money, goods, and chattels.
4 Pickering, op. cit., 175. Since the statute applies only to takings from the King's subjects, and only to
takings within the realm, and neither Molloy nor Wooddeson gives any basis for his interpretation other
than the statute itself for applying its terms to takings from foreign merchants anywhere, or from English
subjects at sea, other than the rule in Justinian's Digest discussed in the text at notes 56-58 above, the precise
evolution of the rule seems doubtful. One possible explanation is given in 1 Hale, The History of the Pleas of
the Crown (1778 ed. by Sollom Emlyn) 542: "Tho the statute speaks of the king's subjects, it extends to aliens
robbed; for tho they are not the king's natural-born subjects, they are the king's subjects, when in England,
by local allegiance. " That still does not explain any application of the statute to goods "pirated" from any
merchants, English or foreign, at sea. Wooddeson believed that it was a rule of English Common Law.
Wooddeson, op. cit., p. 429. But the Common Law did not apply to offenses at sea. Wooddeson was the
third Vinerian Professor of English Law at Oxford (Sir William Blackstone had been the first), and his
lectures, published in 1792-94, were regarded by many as highly as the magisterial work of his more famous
predecessor, Blackstone, the author of the Commentaries. See Chapter II text at note 152 sq. below.
62 The Law of Piracy
176. Molloy, op. cit., para. xx. The statute is 27 Edw. Ill statute 2 c. 13 (1353). Assuming Molloy's
summary of the law reflected accurately the legal position in 1677, it is a bit confusing. The statute he cited
is part of the famous Statute of the Staple. 2 Pickering, op. cit., 78 (1762). In Pickering's translation it says:
13. Item, we will and grant, That if any merchant, privy or stranger, be robbed of his goods upon
the sea, and the goods so robbed come into any ports within our realm and lands, and he will sue for
to recover the said goods, he shall be received to prove the said goods to be his own by his marks, or
by his chart or cocket, or by such good and lawful merchants, privy or strangers. (2) And by such
proofs the same goods shall be delivered to the merchants, without making other suit at common
law.
Id., p. 87. The last sentence relates to the fact that the law of the staple was the Law Merchant, not the
Common Law. Id., p. 92, 27 Edw. Ill 2 c. 22 (1353). It is noteworthy that the statute does not give any special
favor to English merchants, but applies equally to merchants "strangers" (foreign) as to merchants "privy"
(English). Molloy gives no citation to cases or statutes to explain the construction giving rights of recovery
to English merchants that are withheld from foreigners. Of course, the word "piracy" does not appear in
the statute of 1353. As noted in note 103 above, the word "marque" does appear in another chapter of the
Statute of the Staple, c. 17, dated in the Oxford English Dictionary to 1354 instead of 1353 as in Pickering.
The full text of that chapter illustrates the special care taken in England to safeguard the property rights of
foreign merchants, and thus, impliedly, the erosion of that concern by the mid 17th century when Molloy
was writing:
Item, That no merchant-stranger be impeached for another's trepass, or for another's debt,
whereof he is not debtor, pledge, nor mainpernour: (2) provided always, That if our liege people,
merchants or other, be indamaged by any lords of strange lands or their subjects, we shall have the
law of marque, and of taking them again, as hath been used in times past, without fraud or deceit. (3) And
in case that debate do rise (which God defend) betweixt us and any lords of strange lands, we will
not that the people and merchants of the said lands be suddenly subdued in our said realm and lands
because of such debate, but that they be warned and proclamation thereof be published, that they
shall void the said realm and lands with their goods freely, within forty days after the warning and
proclamation so made . . .
2 Pickering, op. cit., 89. The statute and the problems discussed in the text illustrate also the impossibility of
maintaining private recapture under a theory of the Crown's internal responsibility without engaging the
Crown's external responsibility; there is apparent a transition from letters of marque and reprisal as a way
consistent with feudal law to avoid going to war on a "sovereign" level, to letters of marque and reprisal as
an exercise of belligerent rights valid only on the "sovereign" (or public) level. See Clark, The English
Practice with regard to Reprisals by Private Persons, 27 AJIL 694 (1933). A summary of this evolution, with
citations useful to those interested in further study, can be found in Sohn & Buergenthal, International
Protection of Human Rights (1973) 23-40.
177. 1 Marsden, Documents, p. 388-394. The Privy Council extract is at note 1 on p. 394. Quaere if this is
the same Newporte mentioned in Chamberlain, op. cit. note 73 above 34 (letter no. 61 dated 28 February
1603) as having taken a treasure rumored to be worth 2 million pounds in Nombre de Dios and Cartagena.
178. See text at note 86 above.
179. 1 Marsden, Documents 224, from a recital in an unsigned opinion Marsden identifies as probably a
copy of a 1579 legal memorandum from David Lewes, judge of Admiralty, to the Lord Admiral setting out
the bases for the Admiral's legal authority. This is the earliest document found setting forth a basis for what
later came to be asserted as "universal "jurisdiction in all countries to enforce their domestic laws against
foreign "pirates" for their acts solely directed against foreign victims. That the roots of that concept lay in
the municipal (English) law of "outlawry" and not in any international practice or Roman law, appears to
have been forgotten by later writers and statesmen. See Chapter III below.
180. 1 Marsden, Documents 173 note 1, paraphrasing "Instructions to Vice-Admirals of the coast" dated
1563.
181. Id., p. 216-217.
182. Id., p. 217.
183. Id., p. 218, setting out a sample commission.
184. Id., p. 202-204.
185. Id., p. 218 note by Marsden paraphrasing Burghley's letter.
186. Id., p. 220-221.
187. Id., p. 224-225.
188. Id., p. 227-229.
189. Id., p. 235-236.
190. Id., p. 252.
Origins 63
191. After Elizabeth was succeeded by James I in 1601 there was a further tightening of the
administration, and commissions to companies engaged in normal mercantile voyages in the Mediterranean
or along the African coast began specifically to include authority to capture "pyrates." Id., p. 377-378
(Commission dated 1609 from James to the Lord Admiral, Charles Earl of Notingham, authorizing him to
allow ships of the Levant Company to take "anie pyraticall shipp . . . , of what nation soever, ... to bee
tryed and proved by lawe and justice . . . and soe suffer the payne of our [sic] lawes for theire pyracie . . . ");
p. 385-386 (Order of 1612 from Notingham to his staff to issue a commission to Humphrey Slaney "to resist
and take such piratts and robbers att seas as shall piratically sett upon them ..." as they trade to "Guiney "
(Guinea)). There is an implication that pirate-hunting in the absence of such a commission was
unauthorized by English law, and an Englishman doing it might find himself in serious trouble at home
whatever the strength of David Lewes's or Gentili's legal arguments about the nature of "piracy" at
international law. By the end of the 17th century it seems to have been standard practice in England to
require those who might encounter "pirates" to procure a license to capture them before setting out. See,
e.g., the Warrant by Charles II (signed by Samuel Pepys) in 1684 authorizing "John Castel ... to seize and
destroy all such pyrats, freebooters, and sea rovers, which he shall meet within the limits of [the Royal
Affrican] companye's charter . . ."2Marsden, Documents 112-113. Apparently this authority did not extend
to "pirates" outside the limits of the charter. When, in 1697, the East India Company found "pirates" of
the Kidd and Every sort (see Chapter II note 91 sq. below) a serious threat to their trade, they petitioned the
Lords Commissioners executing the office of the Lord High Admiral of England for a license "to seize and
take all pyrates infesting those seas within the limits of the Company's charters." They asked at the same
time for authority to set up an Admiralty tribunal "to trye and condemn such pyrates as they shall take."
Id., 178-180.
192. Id., p. 300, Proclamation of 1599.
193. 1 Rolle 175 (1615), King's Bench, Easter Term. An English version sub nom. The King against March
taken from 3 Bulstr. 27 is reproduced in 3 BILC 767-769.
194. The captor was "Sam. Palachie." "Joseph Pallache" is mentioned in Fisher, op. cit., 175, as the
Moroccan commander of an Atlantic fleet three of whose prizes reached England in 1614. Chamberlain, op.
cit., 212-213 (letter no. 213 to Carleton dated 24 November 1614) refers to "a Jew pirate arrested that
brought three prizes of Spaniards into Plymouth. He was set out by the King of Morocco, and useth
Hollanders' ships and, for the most part, their mariners. But it is like he shall pass it over well enough, for he
pretendeth to have leave and license under the King's hand for his free egress and regress ..."
195. It is not clear whose words are thus reported by Rolle. Sir Edward Coke and Sir John Doddridge are
identified by Rolle as members of the panel. Coke gives some details lacking in Rolle's more or less official
report. Apparently the Spanish Ambassador had complained directly to the King's Council, which referred
the case to the Chief Justice (Coke), the Master of the Rolls (Doddridge) and Sir Daniel Dun (judge of
Admiralty). "And the said referees heard the Counsel learned both in the Common and Civil Laws, on both
sides on two several days in this Term: and after conference between themselves, and with others, these
points were resolved ..." Coke, Fourth Institute cap. XXVI at p. 152-154.
196. The major doubts reported by Rolle were resolved in favor of Palachie on the basis of a precedent
pronounced by Lord Popham in King's Bench, 1605, in which a Dutchman landing captured Spanish goods
in England while England was at peace with both Holland and Spain, was supported. According to Coke's
summary: "It was resolved by the whole Court of the King's Bench upon conference and deliberation, that
the Spaniard had lost the property of the goods for ever, and had no remedy for them in England." Coke
summarized the law:
[H]e that will sue to have restitution of goods robbed at Sea, ought by Law to prove two things.
First, that the Sovereign of the plaintiff was at the time of the taking in amity with the King of
England. Secondly, that he that took the goods was at the time of the taking in amity with the
Sovereign of him whose goods were taken: for if he which took them was in enmity with the
Sovereign of him whose goods were taken, then it was no depredation or robbery, but a lawful
taking, as every enemy might take of another . . .
Coke, Fourth Institute 154. It seems significant that Coke does not mention commissions or letters of marque
and reprisal to authorize the taking.
197. The translation from the quaint law French of the time is mine. The English version reported in The
King against Marsh and cited at note 193 above seems obscure in places and not to follow the original law
French. The original is as follows:
[Sam. Palachie, a subject of the] Roy de Moroccho, & pretend que il est Embassador de son Roy al United
Provinces & sur le mere il prist un Spanish niefe (esteant guerre enter le Roy de Barbary & le Roy de Spain) &puis
arrive ove ceo [avec qa ?] en Engleterre, & darrenment le Spanish Embassador prosecute anvers luy come un Pirat, &
divers Civilians fuerunt commaund per le Roy a montre lour opinions de cest matter, lesqueur agree que un
Embassador est priviledge per la ley de nature & Nations, mes sil commit alcun offence encontre la ley de nature ou
64 The Law of Piracy
reason, ilperdera son priviledge, mes nemy sil offend encountre un possitive ley d'alcun Relme come pur apparrel & c.
Et divers auters questions fuerunt fails per les Civilians; mes quant jeo & alcunjustices al comen leyfuerunt demand
pur notre opinions, ils disoint que les Civilians fuerunt beside le matter, car cestuy que est desire trie icy pur piracie est
destre trie surl'estatute de 28 H.8cap. /blank space in text] que dit que serra trie pur piracie come pur felonie fait
sur le terre al comen ley, &pur ceo nest piracie nisi ad estre felonie si mesme lefact ad estre commit sur le terre, mes en
cest case ceo n'ad estre felonie si ad estre commit sur le terre [sic] car est loyall pur un enemie a prender de
Tauter, & accordant a notre opinions fuit rule accordant, & 2 R[ichardj 3.2. est que si alcun voilt
prosecutre vers auter sur 21 E[dwa.vd] 3 cap. 13. il que est robbe doit proover que il mesme fuit de amicitia Domini
Regis, & que cestuy que luy spoliavit fuit sub obedientia Domini Regis vel de amicitia, car si fuit inimicus nonfuit
spoliatio sedlegalis captio. Des en Palachies Case fuit agree per les Civilians que V Embassador poet proceeder vers
luy civillieper les biens icy pur ceo que ils sont en solo amici, (R. Quaere ceo car semble que per la ley de nations un
enemie poet loyalment prender de V auter) Dod. est un reprisell en le Register, Coke ceo estfo. 87. si biens ne sont
restore que sont illoyalment prise per subject d' auter Roy donque le Roy grantera ceo. Etper Coke & Dod. home ne
poet estre pendus pur piracie sur un robberie fait sur le Thames car ceo est infra corpus comitatus.
The statute of 27 Edward III cap. 13 cited in the case is undoubtedly the part of the Statute of the Staple
quoted at note 176 above, 27 Edw. Ill 2 cap. 13. There does not appear to be any language in the statute to
support Coke's assertion that a merchant claiming rights under it must prove that he comes from a "friend"
of the King and that he who robbed him was within the "obedience "of the king or one of his royal friends.
The statute 21 Henry VIII c. 11 (1529) quoted in note 175 above was interpreted this way, as the lawyers
apparently sought to make absolute sense of Common Law interpretations that had grown up without a
clear statutory base.
The citation to 2 R. 3.2 is very confusing. Pickering's compilation, the more or less standard Statutes at
Large, does not give any enactments at all for the second year of the reign of Richard III (1484). None from
the prior year seems even remotely relevant. The statute 1 Henry VII c. 2 (1485) relates to foreign merchant
"denizens" in England, removing from them an exemption from customs duties that had been granted in
various earlier letters patent and other documents, alleging abuses by which non-denizen foreign
merchants were underselling English merchants by evading the customs duties. It looks like simple
protective legislation favoring an important English constituency, irrelevant to the subject. 4 Pickering, op.
cit. , 526. It was ch. 13 of the Statute of the Staple that gave foreign merchants the legal right to use English
courts, and Coke's interpretation seems merely to reflect a Common Law gloss on its meaning.
Another, quite different statute, seems relevant although not cited by Coke: 14 Edward III st. 2 cap. 2 (1340):
Also whereas it is contained in the Great Charter [c. 30] that all Merchants shall have safe and sure
Conduct to go out of our Realm of England, and there to come and abide . . .; We . . . will and grant
. . . That all Merchants, Denizens and Foreigners (except those which be of our Enmity), may
without Let safely come . . ., paying the Customs, Subsidies, and other Profits reasonably thereof
due . . . [Et come y soit contenuz en la Grande Charte qe toutz marchantz eient sauve et seure conduyt daler hors de
nostre roialme d'Engleterre . . .; Nous . . . volons et grantons . . . qe touz marchantz denezeins et foreins, forspris
ceux qe sont de nostre enemite, puissent sanz estre destourbe sauvement venir en ledit roialme . . .]
1 Pickering, op. cit., 508. But this statute relates to coming and going, not to access to the courts. It is, of
course, possible to speculate that if an "enemy" merchant had no legal basis for coming to England in this
statute, he could not legally appear in any guise before an English court; that his only right at English law as
an enemy alien would be to depart safely within a time fixed by English law. But that would be to attribute
to Coke a logic that he does not himself state.
198. 1 Rolle 285 (1615), King's Bench, Hilary Term.
199. Hildebrand, Brimston, & Baker fueront sue en Admiraltie Court, le case fuet tiel, ceux homes fueront owners d'un
neife, & ceo mist al Indies a merchandiser, & sur le alt mere les Mariners, & rendue commit Piracie (come est suppose en
L 'admiraltie Court) & quant le neife return icy sur le Thames L 'admiral seise le neife, & tout en ceo come bona Piratarium
clamant eux per le grant del'Royne, & les Marchants prisont les sailes & tackling hors del' neife, & pur ceo est le suite en le
Admiraltie Court. Covent. praie un Prohibition al Cour sur cest matter. Coke est voier que le Admiraltie ad per le grand [sic;
grant?] del'Royn bona Piratarium, hoc est les proper biens de Pirats, mes il navera per ceo les biens que les Pirats emblee
d'auter homes, car ceux ne sont destre grant, carl'owners doint eux aver arare [?], & si L 'admiraltie duissoit aver eux ancor il
ne doit suer la pur eux esteant prise intra corpus Comitatus, scilicer, sur Thames. Dod. si home borrow un chivall, & sur ceo
commit un robberie uncose le chivall n'est forfet, ac icy le neife n 'est forfeit [sic] pur le piracie de ceux que fueront deins le
neife, quod fuit concessumper Coke, & il demand de Covent. an ils fueront convict del'Piracie, que dit que nemy. Et
Prohibition fuit grant pur ceo que le prisall suit infra corpus Comitatus.
200. Coke, Third Institute, Cap. XLIX, p. 111.
201. Id., p. 113:
Before the statute of 25 E. 3, if a subject had committed Piracy upon another . . . this was holden to
be petit Treason, for which he was to be drawn and hanged: because Pirata est hostis humani generis,
Origins 65
and it was contra ligeanciae suae debitum: but if an Alien, as one of the Normans, who had revolted in the
reign of King John, had committed Piracy [sic. Coke obviously means "what would otherwise be
piracy"] upon a subject, this offence could be no Treason, for though he were hostis humani generis ,
yet the crime was not contra ligeanciae suae debitum, because the offender was no subject, but since the
statute of 25 E. 3, this is no Treason in case of a subject.
The Statute of 25 Edw. Ill referred to by Coke is the Statute of Purveyors (tax collectors), statute 5 of that
year (1352) (2 Pickering, op. cit., 49), chapter 2 of which has come down to us as the "Statute of Treasons"
cited at note 134 above. By this statute, earlier uses of the word "treason" in law were superseded, and a list
of exclusive definitions was given:
When a man doth compass or imagine the death of our lord the King or of our Lady the Queen, or
their eldest son and heir ... or if a man do levy war against our Lord the King in his realm, or be
adherent to the King's enemies in his realm giving them aid and comfort in the realm, or elsewhere
...[... quant homme fait compasser ou imaginer la mort nostre seignur le Roi ma dame sa compaigne ou de lour
fitz primer & heir . . . & si homme leve de guerre contre nostre dit seignur le Roi en son roialme ou soit adherent as
[sic; adherant aux?] enemys nostre seignur le Roi en le roialme donant a eux eid ou confort en son roialme ou par
aillours . . .]
The statute goes on to call "treason" the violation of feudal or common law obligations owed to lesser
mortals also:
And moreover there is another manner of treason, that is to say, when a servant slayeth his master,
or a wife her husband, or when a man secular or religious slayeth his prelate, to whom he oweth
faith and obedience . . . [Et ovesque ceo il y ad autre manere de treson cest assavoir quant un servant tue don
[son?] meistre une femme qe tue son baron quant homme seculer ou de religion tue son prelat a qi il
doit foi & obedience . . . ]
The former was eventually called "high treason;" the latter "petty treason. "2 Pickering, op. cit., 51-55.
202. See below at Chapter II note 11-45 sq.
203. Southern v. Howe, 2 Rolle 5 (1617): "Auri icy nest alcun loyal dampnification al Plaintiff, carilfuit imprison
mes null loyal proceeding fuit ewe vers luy, mes solment ilfuit compell per force d'un barbarous Roy, & donque il doet suerper
Petition ..." There were other grounds for the decision, such as the rule caveat emptor (let the buyer beware),
under which Howe and his servant did no legal wrong to the King of Barbary, and thus could not be
compelled to bow before the foreign law under which the fraud (at least when worked against the king)
would nullify the deal. But this is not the place to trace the development of English rules of conflict of laws
or the law of fraud.
204. Again, as so often in this study, an interesting side-track must be resisted. For a full understanding of
the background against which the classification of the "King of Barbary " as a king and nothing else (he was
not argued to be a "pirate" as far as appears from Rolle 's report of Southerne v. Howe) a full course in
English commercial, criminal and constitutional law of the early 17th century would be necessary.
66
II
The Evolution of the Concept of Piracy
in England
English Law and International Law
It was noted above that three fundamentally different conceptions of
"piracy" gained currency during the 16th century among statesmen and
jurists. One, put forth by Grotius, involved attaching the label "pirate" to
armed bands or individuals whose primary object was plunder regardless of
place. Its legal result, derived from the ancient Roman law dealing with the
extension of Roman criminal jurisdiction to cover the acts of foreign
"latrones" or "praedones" within the Empire, including its seas, was suppression
at the whim of the state and trial of those captured under the municipal law of
the captors. Another, urged by Gentili, incorporated the same results, but,
instead of flowing from facts more or less objectively determined, flowed
from political decisions of the decision-makers in each society as to what
labeling system would best suit their needs, and achieved the legal and
political results they preferred as a result of their choice of labels. The third
involved the incorporation of the word "pirate" into municipal law and in
England involved the application of the word and whatever legal results were
determined to flow from it as a matter of English municipal law by the
civilians in Admiralty, the Common Law judges of the King's Bench, and,
presumably, whatever was formally decided by the body with legislative
authority outside of the complex legislative competence extended to judges
in the guise oi "discovering" the Common Law or Civil Law in English
courts.
Where the Grotian and Gentili approaches either presumed the existence
of a world state analogous to Rome, and thus saw no limit to municipal law
territorial jurisdiction, or saw the world divided into separate sovereignties
with "privateers" or even whole communities deriving their authority to act
against strangers from a distribution of legal powers within the overall
system, the Common Law judges in England thought municipal concepts of
jurisdiction the essence of the situation and traced jurisdiction to the legal
powers of the sovereign in England over his subjects and his territory. The
English Admiralty judges thought of "piracy" as a word of art in English law
that was useful in questions o£ property rights primarily; to dispose of the
Evolution in England 67
claim to title that might be presented by a "privateer" licensed by a foreign
sovereign in the case of goods recaptured by an English privateer claiming
salvage from the original owner or claiming the full rights of property against
an "owner" whose "rights" derived from foreign "privateers" or "pirates. "
The administrators of England thought of "piracy" as a word to cover
mutinies and other shipboard violence within the jurisdiction of the
administrator, the Admiral, whose perquisites of office included a share of the
profits of litigation and whose relationship to royal favor could be used as a
counterweight to the independent Common Law courts. The Common Law
judges thought of "piracy" as a special Admiralty word whose precise
meaning could be developed by civilians, but which bore some relationship to
petty treason and shipboard authority. The Acts of 1535 and 1536 placed
Common Law judges and both Common and Civil Law trained administrators
on the tribunals that had thitherto been dominated by civilians. The result was
a reconsideration of all the basic rules and concepts, worked out in a series of
cases with major constitutional implications in England because involving the
distribution of legal powers between the Crown and the Common Law career
judges and, in the case of the actions of the East India Company and other
chartered organizations, the struggle between the Crown and Parliament for
control of the profits of overseas activities by English bodies corporate.
Among the first things to fall was the notion adopted by Coke and Hale that
"piracy" was a kind of petty treason; it fell with a political struggle, but with
little analysis of the underlying jurisdictional and definitional questions. To
understand the shift of meaning occurring at the end of the 17th century in the
context of the political pressures involved in maintaining the fruits of the
Glorious Revolution of 1688 despite efforts both on land and sea by the
deposed James II and his French ally, Louis XIV, it is necessary first to
consider some of the evolution of thought by civil lawyers as the naturalism of
Grotius and the positivism of Gentili began to affect their conceptions of
national jurisdiction in an age of expanding foreign trade.
As English commerce expanded, it first became important to come to grips
with the question of the legal classification best fitted to unrecognized or
unpleasant states and rebels with real military power. Gentili's experience
showed that the asserted freedom of statesmen and lawyers to attach such
labels as suited their needs was in fact limited by reality and the needs of stable
commerce, if stable commerce were considered a value to be protected by the
law and reality was important to the state whose merchants engaged in it. The
position was well stated by Sir Leoline Jenkins, Privy Councillor to King
Charles II, in a letter to the King dated 11 February 1680, concerning title to a
British ship taken by an Algerine warship and then wrecked on the coast of
Ireland. The technical question was whether the Muslim members of the
ship's company should be treated as pirates and hanged, or as honorable
soldiers. There had been no declaration of war between England and Algiers
68 The Law of Piracy
effective at the time. Jenkins, a civilian who had served with distinction as a
judge in the Admiralty courts and was reputed one of the most influential
jurists in England, 1 took an eclectic approach:
As for the Moors and Turks that are so by birth, and were found bn board . . . since the
Government of Algiers is owned as well by several Treaties of Peace and Declarations of
War, as by the Establishment of Trade, and even of Consuls and Residents among them
by so many Princes and States, and particularly by your Majesty; they cannot ... be
proceeded against as Pirates . . . but are to have the Privileges of Enemies in an open
War. 2
His conclusion was thus based not only on convenience and policy as
evidenced by consistent European practice and British consular practice, but
also on an examination of what classification would best fit the facts more or
less objectively determined. The policy arguments that might have been
urged by an advocate like Gentili are not raised: There is no mention of the
fact that Englishmen caught without license in Algiers or in English ships
captured by Algerian raiders were enslaved at this time; and no policy
argument based on the apprehension of reciprocal mistreatment or reprisals
by Algiers against the English trading community there. Nor is there any
doubt cast on the validity in England of a license or commission issued by the
Dey; the question does not seem to have arisen.
Confirming this approach to the question of how to treat the Barbary states
the great Dutch jurist of fifty years later, Cornelius Bynkershoek, used the
same logic to come to the same conclusion:
... I do not think that we can reasonably agree with Alberico Gentili and others who
class as pirates the so-called Barbary peoples of Africa, and that captures made by them
entail no change in property. The peoples of Algiers, Tripoli, Tunis and Salee are not
pirates, but rather organized states, which have a fixed territory in which there is an
established government, and with which, as with other nations, we are now at peace,
now at war. Hence they seem to be entitled to the rights of independent states. The
States-General [of the Netherlands], as well as other nations, have frequently made
treaties with them . . . . 3
As a practical matter, this resolution of the question of theory with regard
to attaching the label "pirates" and its legal results facilitated the removal of
the question from the policy arms of government in England to the courts. A
more or less objective standard based on British (or Dutch) official behavior
as a symbol of acquiescence and convenience, and on facts, was fixed in these
opinions. Judges, whose training and constitutional place in municipal law
made them conceive of their function as that of applying the law, given
elsewhere, to facts presented as pertinent to established prescriptions of law
and procedure, could determine who was a "pirate" and who a licensed
"privateer" or commissioner of a Prince without the case by case referral to
the Crown that Gentili's approach. would have required. The standard was
also much more coherent than the high policy decision that was proposed by
Grotius, which involved some kind of determination as to the purpose of the
Evolution in England 69
foundation of the society purporting to license raiders. Instead, it found the
authority to license raiders in evidence of how the society in question was
treated by England in other matters and, in default of English precedent, how
that society was treated by other actors in the European state system. While
this approach was still far from certain and allowed a substantial measure of
subjectivity when dealing, for example, with rebels or non-European
"states" whose relations to any European "state" were ambiguous or
negligible in quantity, in practice the questions could be handled with
substantial ease within the normal processes of English municipal law.
Commissions: Privateers as "Pirates"; Positivism Rampant and
Naturalism Resurgent in the 1690s
In 1688 King James had been forced to abdicate the English throne and flee
to France and then to Ireland. There he issued commissions to privateers to
raid English shipping, regarding the new government of William of Orange
and Mary, the eldest daughter of James, as usurpers. Eight of his privateers
were caught and in about July 1692 the Lords of William and Mary's Privy
Council resolved that they should be tried by an appropriate tribunal as
"pirates." That November the Lords of the Admiralty ordered Dr. William
Oldys, the King's Advocate of the Admiralty, 4 to proceed against them on
that charge. Oldys refused on the ground that their acts as commissioners
even of a deposed King did not constitute "piracy" as he understood the term.
The conclusion of the civil lawyers whom Oldys consulted 5 agreed with this
except for Dr. Littleton (about whom very little seems to be known other
than that he succeeded Oldys as Admiralty Advocate at the conclusion of the
episode now being recited) and Matthew Tindall. 6 On 20 May 1693, the
following opinion was formally presented by the civilians of Doctors'
Commons to the Admiralty Board on the question, "Whether Their
Majesties' subjects serving under the late King James' commission ought not
to be prosecuted as pyrats":
Tho. Pinfold: They are not in law pyrates, nor ought to be prosecuted as such, as I
conceive.
Wm. Oldys: I am of the same opinion.
Matt. Tindall: None can grant commissions for private men of war but they that have
summum imperium, or a power of making peace and war for some state
or nation. That the late King James, by having justly lost his kingdom,
and being in the dominion and power of another, has not only lost the
power of making peace and war, but without his [?] consent has not the
power or freedome to send to or receive or protect the persons of any
that are sent to him with a publick character to treat about peace or
war, and is reduced to the state and condition of a private person. For
he that has no government, nor a right to any, and also [is] in the power
70 The Law of Piracy
of another, cannot but be a private person, and has no right to grant
commissions to disturb the trade and commerce of a nation (with
whom too he has no war); and those taken serving under his
commission are to be dealt with as if they had no commission, and
being subjects of their Majesties, are incapable to receive any
commission to fight against their fellow subjects, though granted by
a just authority, and, in my opinion, may be by the law of nations
prosecuted as pirates.
Rt. Walton: I am of the opinion that by the law of nations no persons who act in the
prosecution of an open war, and against some particular enemies only,
are to be esteemed pirates. A pirate being such an one as commits acts
of hostility against all men without distinction, and without the
solemnities of war ....
Wm. Oldys: This was agreed on by all the King's Councell, both common and civill,
that in case their opinions were required, whether it were advisable
that these prisoners should be prosecuted for treason or pyracy, their
opinions were in the negative, thinking it no ways advisable, and
desired me to intimate as much to this honorable Board.
F. Littleton: I am of the opinion that their Majesties' subjects taken fighting under
the late King James, his commission, against others their Majesties'
subjects upon the high seas may be prosecuted as pyrates. 7
In September 1693, Dr. Oldys was summoned before the Cabinet Council
composed of the Lords of the Admiralty, the Earls of Nottingham,
Devonshire and Pembroke, and Sir John Trenchard. 8 Trenchard questioned
Dr. Oldys about his opinion:
Dr. Oldish: 9 Pirates are common enemies to all mankind, having no legal authority
for what they do; but they shew a commission signed J. R. [Jacobus Rex
(James the King)] dated at the court of St. Germaine's, together with
articles and instructions annexed, in the same form as privateers have,
giving caution and security to bring prizes, and judgment into the
Court of Admiralty, before Thomas Shadford, at Brest, or elsewhere:
this does no way agree with piracy, or the character of a pirate, who is a
robber, and has thereby lost his right in the law of nations.
Sec. Trenchard: But king James has lost his sovereignty, in that he has parted with his
crown, and consequently with the power of granting such commissions.
Dr. Oldish: A king may be deposed of his crown, but cannot lose his right. So says
Grotius, 'Jus regis penes ipsius manet, utcunque possessionem amiserit. '
A king, therefore, in case he be deposed of his kingdom by the law, he
has a right to war, and if so, he has all the ways and consequences of
war, amongst the rest, pignorations and reprisals, which is a power of
granting letters of mart [sic] and reprisal.
Sec. Trenchard: This may be law, in case where the king is deposed; but what if the king
abdicates?
Dr. Oldish:
Sec. Trenchard:
Dr. Oldish:
Lord Devon:
Evolution in England 71
If he did really abdicate, as did the emperor Charles the fifth, or the
queen of Sweden, then he is no other than a private person, and cannot
legally grant any commission. But whether a privateer, acting by
commission granted him de facto by king James, not knowing that he had
abdicated, whether such an error will excuse a poena delicti! For that a
reputable power is equivalent to a real one in such a case.
To clear this, doctor, we must examine the circumstances of the case,
and see if they be such as may occasion and induce a common error,
whereby many may be deceived, as well as privateers.
It is notorious to us, and all the world, that king James was once a
lawful king, and acknowledged by us, and all the world, to be so; that
when his army deserted him, he fled to his ally in France for aid; then he
went into Ireland to recover his kingdoms, as his declaration sets forth;
there he grants commissions: those who fought under those commis-
sions, and were taken, were not used as thieves and robbers, but as
prisoners of war; whereby his claim seemed to be allowed by his very
enemies; and those persons who acted under him in Ireland were
treated as enemies, not rogues, though they acted under no king but
king James, and by his command; that upon their return to France, they
repaired to king James, their king, and thought him as well impowered
to grant commissions by sea as land, and upon receipt of commissions
from him, came out 'animo hostili, ' as privateers, 'non animo furandi, '
as pirates: That a colourable authority remaining in king James, will
excuse those who acted under him from being pirates, since the
abdication was never published, nor so much as heard of in France; and
since in piracy, which deserves 'ultimum supplicium,' if proved, all
favourable allowance ought to be made, and a general acknowledge-
ment of a false authority in another country (where the commissions
were taken) will free them from a felonious intent in taking them, and
consequently from piracy; for so it is, that king James is owned and
reputed a king in France; and therefore in this case it is undoubted law,
'Communis error facit jus.'
What if Tourville should grant such commissions to any Englishman,
were they not pirates who acted under him?
Dr. Oldish:
No, even the power of granting such commissions being excepted in his
patent, yet by common intendment, as admiral, he can grant such
commissions; and as it is not to be presumed, that private men should
look into his patent, so neither ought they to suffer for not having seen
it; it is sufficient for them, that he is reputed to have such power.
Lord Devon: What if monsieur Pompone, or any other minister of state, should grant
such commissions?
Dr. Oldish:
Why then it would not be good; for by common presumption, a
secretary of state would not grant such commissions, that power being
proper only to the admiral.
72 The Law of Piracy
Sec. Trenchard,
and Lord
Faulkland, in the
great heat:
I — pray, doctor, let us deal more closely with you, for your reasons are
such as amount to high treason. Pray, what do you think of the
Abdication?
Dr. Oldish:
That is an odious, ensnaring question; however it may be, I think of the
abdication as you do; for since it is voted, it binds at least in England;
but those gentlemen were in a foreign country, and knew nothing of it;
and though king James be not king here, yet the colour of authority
remaining, and common reputation of him as king there, excuses them,
as I said before.
Sec. Trenchard: What say you of the pirates under Anthony, King of Portugal?
Dr. Oldish: As to the case of the Frenchmen, under Anthony, king of Portugal, the
book says, 'Traciati sunt non quasi justi hostes, sed quasi pirati qui sub Antonio
militant;' and the difference of this case appears in the reason of it: For
there the Spaniards never owned Anthony as king; here it is quite
otherwise, for king James was really and truly a king, owned by us, and
all the world.
Sir Thomas Pinfold being asked what he had to say, declared himself of the same opinion. Dr.
Newton and Dr. Walker, 10 did not deliver their opinions, but desired time to consider of it.
Dr. Newton said, it was against his conscience to have a hand in blood.
Dr. Littleton said, That king James now was a private person; we had no war with him, nor he
with us; or if he designed to have any, Aerarium non habet, he is not in a capacity of making
war, he can neither send nor receive ambassadors; and those who adhere to him, are not
enemies, but rogues, and consequently those persons are not privateers, but pirates.
Dr. Tindall was of the same opinion with Dr. Littleton.
Dr. Oldish hereupon was removed from his place of king's advocate, and Dr. Littleton
succeeded him, who tried the persons, and condemned them. 11
Tindall, in an Essay Concerning the Law of Nations considered this entire
episode from his own point of view and added some further details.
According to Tindall, after Oldys had made his telling point that those who
followed the deposed King James II on land in Ireland were treated as
enemies, not as criminals, by the English victors,
One of the Lords then demanded of him [i.e., Oldys], if any of their majesties' subjects,
by virtue of a commission from the late king, should by force seize the goods of their
fellow-subjects by land, whether that would excuse them from being guilty at least o{
robbery? If it would not from robbery, why should it more excuse them from piracy? To
which he made no reply. 12
A variant of the same point was addressed to Sir Thomas Pinfold and Oldys
both:
Evolution in England 73
Whether it were not treason in their majesties' subjects, to accept a commission from
the late king, to act in a hostile manner against their own nation? Which they both
owned it was (and Sir Thomas Pinfold has since, as I am informed, given it under his
hand, that they are traitors). The Lords further asked them, if the seizing the ships and
goods of their majesties' subjects were treason, why they would not allow it to be
piracy? Because piracy was nothing else but seizing the ships and goods by no
commission; or what was all one, by a void or null one; and said, that there could be no
commission to commit treason, but what must be so: To which they had nothing to
reply. 13
It thus seems clear that to the Lords of the Admiralty and Council, "piracy"
had retained some of the "treason" implications of Coke's analysis of some 60
years before: A word that could be attached to "traitors. " The legal effect in
a high treason case, as distinct from petty treason under Coke's analysis, was
to substitute a trial by special Commission under the statute of 1536 14 for the
trial by the House of Lords or other less malleable court required by an
accusation of high treason. This possibly cynical and extreme view of the
utility of legal categories was apparently more than Tindall himself was
willing to affirm, although he did not dispute it and represented Oldys and
Pinfold standing mute before the Lords' argumentation. Tindall seems to have
adopted entirely the position given by Sir Leoline Jenkins a generation earlier:
That it was a matter of national discretion whose licenses to acknowledge,
and that any taking not authorized by a license issued by an acknowledged
"sovereign" could properly be called "piracy" at English law, and be visited
with the legal procedures and punishment fitting that charge in England.
It does appear that by Tindall 's and the Lords' analysis, only English people
without a valid commission were precluded from asserting belligerent rights
(as privateers) against other English people. The equation of "piracy" with
"treason" rested on the notion that the accused criminal must be bound in
loyalty to the government of England; that "piracy" could be the charge that
flowed from a breach of that loyalty. Since foreigners not "denizens,"
habitually resident in England, are not so bound, the question was left open as
to whether "piracy" could exist where there was no "treason," and the
similar but easier question was posed, whether an Englishman could accept a
commission from a foreign acknowledged sovereign to act against
Englishmen. 15
To the first of these questions, Tindall replied by reviewing the story of
Dom Antonio and the Frenchmen with commissions from the French king
who were executed as pirates by Spain. 16
As to the story of Antonio, the doctor [Oldys] is (to suppose no worse) abominally
mistaken in the very foundation. ... It was the royal navy of France (which is very
improbable did act by any authority but that of the French king's) set out . . . 'regis sub
auspiciis,' with which the Spanish fleet engaged, and had the good fortune, after a long
and bloody fight, to route it, and took above five hundred prisoners, of which almost the
fifth part were persons of quality, whom the Spanish admiral was resolved to sacrifice as
pirates, because the French king, without declaring war, had sent them to the assistance
74 The Law of Piracy
of Antonio: Against which proceedings the officers of the Spanish fleet murmured, and
represented to their admiral, that they were not pirates because they had the French
king's commission; but that they chiefly insisted on, was the ill consequence it would be
to themselves, who, if they fell into the hands of the French, must expect the same usage.
As to the French king's assisting Antonio without declaring war, they supposed, that
before the sea fight, the two crowns might be said to be in a state of war, by reason of
frequent engagements they had in the Low Countries. . . , 17
Tindall then compared the legal position of Antonio with that of James after
his abdication, finding that while the fighting was still going on the Spaniards
allowed Antonio the same privileges on land as the English allowed to James
in Ireland despite both Spain and England denying the royal prerogatives of
the respective claimants to authority. He then treated the Spanish
condemnation of French officers as illustrative precedent:
And if the Spaniards, by the law of nations, after Antonio was driven from his kingdom,
might treat those that acted by his commission as pirates, why may not the English deal
after the same manner with those that act by the late king's commission, since they look
on him to be in the same condition as the Spaniards did on Antonio, without a kingdom,
or right to one? 18
From this careful phrasing, it seems that Tindall did not excuse the Spanish
action insofar as it resulted in treating as pirates Frenchmen who held French
commissions. Rather, he adopted the argument put forth by the Spanish fleet,
that reasons of reciprocity and the factual existence of fighting in which
either side's adherents might fall into the hands of the other compel a legal
classification that gives protection to honorable soldiers fighting within the
system; that that protection is lifted only when they remove themselves from
the system by accepting a commission from a person not authorized under the
system as perceived by the capturing authorities to give it.
In fact, the case of the eight Irish "pirates" was far more complex than
appears from these discussions. It was alleged in the appeals petition of the
eight to the House of Lords after they had been tried and condemned as
"Pirates and Traitors" that they were all natives of Ireland and never left
their allegiance to King James; that by the Statute of Treasons 19 conviction
can only be had by judgment of the King in Parliament; that they had a right
to jury trial. Two of the petitioners, John Golding and Thomas Jones, argued
that their commissions had in fact been issued with the consent of King James
by the King of France. All averred that they had never come into any
allegiance with the English government of William and Mary, thus cannot
have committed treason against it. In their view King James, although
defeated in his rightful territories, was still a King and ally of King Louis XIV
of France: "That king James and the king of France being confederated
together in war against England, it matters not in the judgment of the law of
nations, under which of the confederates commission the subjects of either
act;" they should be treated as land soldiers were and might yet again be
Evolution in England 75
treated in Ireland, as honorable prisoners of war. 20 This argument, implying
sound policy reasons for applying the laws of war to "rebels" (or "loyalists,"
depending on whether Parliament or the king is regarded as the sovereign in
England), shows how the Gentili-positivist approach could still be applied to
reach the same practical result as the Grotius-naturalist arguments. Why one
argument is more persuasive than another when both rest on the same
jurisprudential premises is a matter of psychology and sociology more than
logic, and it is not fruitful for present purposes to pursue this point further. 21
It is difficult to unearth at this remove in time the reasons why the very
broad authority under the statute of 1536 to try "treasons" as well as
"piracies" was not conceived in 1693 to make it unnecessary to charge the
eight privateers with "piracy." There seem to be two likely explanations.
One, resting on a technical reading of the Statute of Treasons, 22 involves the
possible desire of the prosecuting authorities and the Privy Council to avoid
the distinctions between the person of the sovereign and his realm on the one
side and the constitution of the state on the other as protected by the terms of
the statute. Nobody pretended at that time that King James II and his
supporters aimed to slaughter William of Orange or Queen Mary, the eldest
daughter of James and the wife of William, who had been placed on the
throne of England by actions in Parliament that were inconceivable in 1352,
when the Statute of Treasons was enacted. The more likely explanation is
that by the 1690s, about 150 years after the statute of 1536 had been enacted,
the idea that its purpose had been to provide tribunals to consider cases
peculiar to Admiralty jurisdiction, of which "high" treason was not one, had
become rooted in common thought among lawyers. Coke, writing before
1634, had begun his chapter on matters covered by the statute of 1536 by
referring only to "Piracy, Felonies, Robberies, Murders, and Confederacies
committed in or upon the Sea, & c. " 23 He then quoted the statute, including its
word "Treason," but in his gloss upon its meaning concluded, in the light of
the historical interpretation of the Statute of Treasons, and the clarifying
statute 35 Henry VIII c.2 (1543), 24 that "it [treason] wanted trial, (as by the
preamble of this statute is rehearsed) at the Common Law." 25 Moreover,
Coke raised a rather subtle technical difficulty when he concluded that after
the Statute of Treasons, the robbery of an Englishman by an Englishman,
which might have been "petit Treason" before, warranting the offender to be
"drawn and hanged," could no longer be considered treason. 26 Coke was
innocent of an uncharacteristically anachronistic reference to "Piracy" as a
discrete concept as of 1352 or earlier, when using the word to mean merely
"robbery within the jurisdiction of the Admiralty," as was apparently the
point of the statute of 1536, but he seems to have been alleging a gap between
the jurisdiction of the Common Law courts and the commissioners in
Admiralty under the statute of 1536 in the case of "piracies" committed by
those Englishmen who, for some reason, perhaps involving the technicalities
76 The Law of Piracy
of the laws of feudal allegiance, were not acting contra ligeanciea suae debitum,
against their obligations of loyalty. These are questions that by 1693 it might
well have seemed better to leave unraised.
On the other hand, the solution found in the case of the eight Irish
commissioners was clearly unsatisfactory, and in 1695 a statute was passed
bringing "treason" directly into the Common Law procedures similar to the
procedures envisaged by the act of 1536. 27 A Commission sat at the Old Bailey
in 1696 to try Captain Thomas Vaughan under this statute, for treason. 28 The
facts are very like the facts in the case of the eight Irish commissioners, but
Vaughan was not accused of "piracy"; only of "treason" under the Act of
1352. The statutes of 1536 and 1695 were taken to permit a treason trial before
an Admiralty tribunal. The case was considered important and the judges of
the tribunal included Sir Charles Hedges (judge of the high court of
Admiralty), Lord Chief Justice Sir John Holt (King's Bench), Lord Chief
Justice Sir George Treby (Common Pleas), Lord Chief Baron Edward Ward
(Exchequer), Sir John Turton (Justice of King's Bench) and others. Dr. Oldys
appears in a minor role as one of the court's advisers on Civil Law.
Being a treason trial, the principal point of contention was the nationality
of the defendant, who asserted himself to have been born in the French island
of "Martinico" and thus a Frenchman for purposes of receiving a privateer's
commission from King Louis XIV. Other evidence, which the jury found
more convincing, tended to establish that he was Irish, thus within the
"ligeance" of the crown of England. Conflicts of allegiance, and the idea of
dual nationality, which had not been strange to Coke in contemplating the
relations of French subjects of King John to English subjects and to King John
himself, 29 were not discussed. But the issue of whether a commissioner could
be a "pirate" did. Vaughan was accused of sailing with French subjects during
a war between France and England. It then appeared that his crew was in the
main Dutch (thus, apparently, subjects of William III as Prince of Orange)
not French. Lord Chief Justice Holt questioned Mr. Phipps, Vaughan 's
defense attorney:
L.CJ. If Dutchmen turn rebels to the state, and take pay of the French king, they are
under the French king's command, and so are his subjects. Will you make them pirates,
when they act under the commission of a sovereign prince? They are then 'Subditi' to
him, and so 'Inimici' to us.
Mr. Phipps. It does not take away their allegiance to their lawful prince. They may go to
the French king, and serve him; yet that does not transfer their allegiance from their
lawful prince to the French king, and make them his subjects. But however, to make
them subjects within this indictment, they must be 'Gallici Subditi;' so they must be
Frenchmen as well as subjects.
L.C.J. Acting by virtue of a commission from the French king, will excuse them from
being pirates, though not from being traitors to their own state; but to all other princes
and states against whom they do any acts of hostility, they are enemies: And their
Evolution In England 77
serving under the French king's commission, makes them his subjects as to all others but
their own prince or state. . . . 30
It would thus appear that having lost on all grounds in the case of the eight
Irish commissioners, the point of view expressed by Dr. Oldys had won on all
points three years later. Indeed, the victory went further, as the denomination
of Lord Chief Justice Holt, a Common Law judge, to head the tribunal had a
great impact on the forms of indictment, proof and other questions under the
Act of 1695 where the civilians disagreed with his rulings; the arguments run
throughout the report. 31 And such questions as might under Tindall's
rationale have been determined by simple assertion of the Crown, as whether
there was a "state of war" between France and England at the key times
(there having been no declaration of war by either side), were submitted to
the jury as questions of fact. Despite the fact that Vaughan was convicted and
hanged, the natural law Grotius-Oldys approach was winning when the
tribunal was dominated by Common Law judges instead of being a council of
successful political figures.
The disagreement represented by the conflicting views of Tindall and
Oldys as to the proper definition of "piracy" for purposes of a prosecution
under the statute of 1536 which, it will be remembered, uses the words
"treason," "felony" and "robbery," but not the word "piracy" in its
operative provisions, was not satisfactorily resolved for the future by the
precedent of the convictions as "pirates" of the eight Irish commissioners of
King James or by the statute of 1695 and the trial of Thomas Vaughan. Doubts
as to the English conception of "piracy" as a form of "high treason" were
partially resolved in 1700 by statute:
That if any of His Majesty's natural-born Subjects or Denizens of this Kingdom, shall
commit any Piracy or Robbery, or any Act of Hostility, against others His Majesty's
subjects upon the Sea, under colour of any Commission from any Person whatsoever,
such Offender and Offenders, and every one of them, shall be deemed, adjudged, and
taken to be Pirates, Felons and Robbers; . . . and suffer such Pains of Death, Loss of
Lands, Goods and Chattels, as Pirates, Felons and Robbers upon the Seas ought to have
and suffer. 32
That the British municipal law of treason should not have been clarified, but
the British municipal law of "piracy" should have been clarified (or
expanded) in this way is probably due to the ease of trials by Commission
using Admiralty judges but Common Law procedures as set up by the statute
of 1536. At least the cases of the eight Irish commissioners and Vaughan point
that way. It appears to have been a choice based on good political grounds to
avoid a trial in the Common Law courts and to permit pejorative adjectives to
be thrown at some of the licensees of foreign sovereigns who claimed a right
to act in disregard of English law as interpreted by the highest political
authorities in England. It is noteworthy, however, that merely taking a
foreign commission was not by itself deemed to involve "piracy"; only the
78 The Law of Piracy
use of that commission against English subjects and denizens — those who were
parties in the conceptions of the time to the social contract between nationals
and residents of England on the one hand, and the sovereign on the other who
was obliged by that tie to protect them. It is also noteworthy that the statute of
1700 does not purport to make foreigners acting in excess of foreign
commissions into "pirates" at English law; only Englishmen acting against other
Englishmen were deprived of the protection of a foreign commission. Since
jurisdiction to make laws that are binding on a state's own nationals wherever
they may be was undoubted in the legislative organs of a state, and that principle
of jurisdiction based on nationality has traces in the very earliest conceptions of
social organization 33 and is sufficient to justify the English legislation, it would
seem that the international law of piracy as posited by Grotius and Gentili, was
irrelevant to the entire proceeding. What was involved was an English statute
giving to an English tribunal subject-matter jurisdiction to try Englishmen for
acts against other Englishmen. To the extent there is any implied reference in
this statute to international law, it was merely as a technical limit the English
were drawing to the legal capacity under international law of a foreign
sovereign to license depredations against English shipping or, even more
narrowly, to limit that sovereign's capacity to remove Englishmen and other
residents of England from the obligations arising out of their being parties to the
English social contract.
English Commissions: Positive Grace v. Natural Justice
Another question remained to be considered by the English courts. That
was the degree to which captures beyond the authority of an otherwise valid
English commission constituted "piracy. " The property law implications ot a
"piratical" capture had been worked out by Caesar long before. 34 The new
issue was whether action in excess of a commission was a crime, or a mere tort
with civil (i.e., tort and property) but not criminal law consequences.
It might be well at this place to recapitulate the evolution of those
commissions. There is clear evidence that by 1599 "piracy" was to become
the crime at English municipal law of an English privateer even under valid
English license who did not bring his capture in for English adjudication. 35
The means by which this was done were the insertion into every commission
and bond beginning in 1602 of "an especiall article and clause to inhibite them
[English privateers] from comminge either in the Streightes [of Gibraltar] or
Barbarie, or for seeling anye of the goodes taken by them in anye other place
then [sic] onlie within this realme of Englande. " 36 And in 1643 the Admiral the
Earl of Warwick instructed his fleet:
[ W]hen the shipp under your command shall apprehend any pyratts . . . you are to cause
them to be kept in safe custody . . . [until] I may take course for the sending of the sayd
shipps and goods into some of his Majestie's ports, according to instructions to mee given
in that behalfe. 37
Evolution in England 79
There were, of course, other reasons for the licensing procedure than to
assure payment of the Admiral's and the King's shares of belligerent
captures and of "pirate" goods. In principle the regulations requiring a
license from the King rest on the assumption that the King by withholding
the license can forbid the activity for which the license is legally required.
Thus, the assertion of a legal power to issue a license is not only a source of
money directly, since payment can be demanded for the license itself, it is
also an assertion of authority against the Parliament or other lawmaking
body. And it is a means of asserting discipline over the general populace
which, at times, might have been an end of itself. 38
Now, since by 1700 it had been English practice for over a hundred years
to require a special license of anybody seeking to sail against "pirates";
and even merchant venturers appear to have been required to get those
licenses, the natural law approach taken by some jurists 39 concluding that
there was no need of a license to hang "pirates" when it was as a practical
matter not feasible to take them to a port in which they could be properly
tried, seems inconsistent with the formal assertions and practices of the
administrators of England. It is, of course, possible, that the proprietors of
the great companies went along with the approaches of the administrators
because it was politic to do so, and that it was policy, not law, that
determined the entire English superstructure of practice built on an
underlying natural law of self-defense and property rights so valued by the
naturalist common lawyers. But it is probably fruitless to speculate as to
the most congenial theoretical models useful to make sense out of complex
events. It is possible to accept the positivist view as to the "grace"
involved in permitting action against enemies or pirates without a license 40
as easily as it is possible to accept the naturalist view implying that it
would have been unjust, and possibly illegal in the grand scheme of natural
law, for the Crown and its judicial officers to withhold that "grace."
In any case, in the prosecution of John Quelch, 41 there is evidence that
by 1704 the rumblings of natural law and "social contract" theory had
become if not dominant at least significant in New England. Positivist
theory emphasizes the legal power of a sovereign to grant a commission
and withholds authority to act in any way from those individuals not able
to find a license for their act in either the express grant of a license or in the
implied grant of a license by action of Common Law or tradition;
naturalist theory emphasizes the direct legal powers of individuals to
protect their natural rights and views the sovereign, deriving his own legal
powers from the consent of the governed under social contract theory, as
either bound to grant the license (even retroactively) or unnecessary.
Natural law jurists would allow individuals to protect their natural rights
without any grant of legal authority from the political superstructure of
society.
80 The Law of Piracy
This jurisprudential distinction seems to be the bridge over which English
municipal law as applied to "piracy" crossed into the realm of international
law. A license from a sovereign might raise international law questions with
regard to action against foreigners whose own sovereigns might seek to
protect them, but where the "pirates" to be hunted under a license were
nationals of the license-granting sovereign in ships of that sovereign or of no
sovereign on the high sea, no international law issues are presented. And
where the "pirates" are foreigners or anybody in a foreign sovereign's vessel
or in foreign sovereign's territory, the questions raised by the "pirate hunter"
pursuing his license beyond the reach of his own sovereign's jurisdiction to
enforce his own law regarding "piracy" are resolved by the normal means of
pursuing the domestic remedies of the licensing sovereign (normally through
prize court in rem actions to recover property improperly captured) or by war,
at that time normally pursued through private licenses granted to aggrieved
individuals by their offended sovereigns. 42 An outline of the system seen
through the naturalist eyes of Henry Marten (Judge of Admiralty, 1617-1671)
in 1626 was prepared during a technical state of peace between England and
Spain when nonetheless letters of marque and reprisal had been issued in
response to alleged Spanish captures from English merchants:
[T]his commission is not of grace, but of justice; for it is intended that none have theis
[these] Letters of Reprisall but such as have received losse & damage & wronges; to
whome his Majestie, beeing not able otherwise to minister right and redresse of the
wronges and losses (a duty incident to his royall function), doth in this kind and by his
meanes, affoordjustice and due satisfaction .... Were there a solemn warr between us
and the King of Spayn, it is notorious that whatsoever wheresoever any subject could
gett from the King of Spayne's subjectes should bee his own jure belli, and not the
Kings . . . Now, because there is no such common or solemn warr, but a reprisall warr,
this privilege or benefitt is restrayned to them who have such commissions of
reprisall . . . . 43
The same notion expressed a generation later by the positivist Jenkins will
illustrate the distinctions drawn here:
[PJiracy at sea is made up of the same ingredients as robbery on land; for it is piracy to
assault a ship, carry away a ship or goods out of a ship, unless it be in necessity (in which
case payment must be made and the victim able to spare the things taken). 44 Also a man is
excused if he takes a ship or goods by a legall commission in time of war or by reprisalls;
but otherwise he shall be esteemed a pirate . . . . 45
Where Jenkins's general language would seem to label as "pirate" an
unlicensed foreigner acting wholly outside of England and attacking ships
only of third countries, Marten's logic applied to the same case would seem to
excuse the foreigner on the basis o( natural justice if his sovereign had
arbitrarily refused to issue the necessary commission. But since neither
Marten nor Jenkins was focusing on the case of foreigners, it would be
improper to read specific applications to foreigners into their generalities. It
might be noted in passing that this excerpt from Jenkins appears to be the first
Evolution in England 81
historically in which the notion appears that to be " piracy" the taking must
be either from a second ship, or the ship itself must be taken from its rightful
possessors; thus, that "piracy" might may not be quite the same as "robbery
within the jurisdiction of the Admiral's courts" (which would include a
forcible taking wholly within a single English vessel), but must involve some
element of foreign jurisdiction or, more precisely, some gap in the normal
jurisdictional rules applicable to English legal prescriptions. To the extent
that his approach would find it to be "piracy" if an Englishman attacked a
second English vessel at sea, which was, of course, precisely the case with
regard to James II 's privateers, the border between international law and
municipal law would seem to be very vague indeed. As noted above, the
English handling of those cases involved the use of the municipal law
regarding "piracy" and the utter rejection by the Lords of the Admiralty and
Privy Council of the notion that international law or Civil Law might stand in
their way. Presumably, Jenkins would have denied that the language quoted
here from 1680 was intended to apply to such a case, but only to the case of
unlicensed Englishmen attacking a foreign vessel or unlicensed foreigners
attacking an English vessel; that in other cases either English municipal law
applied without reference to any international complications, or, if English
law were not applicable because all actors and victims were foreign, that it
was not of English concern and the international law implications, if any,
should be worked out in diplomatic correspondence and not by the English
courts. Marten, on the other hand, would appear to have adopted an approach
that would make the underlying "justice" of the attacker's case a legal
question for whatever tribunal was hearing it, and thus to bring the
international legal order's concepts of "justice" into play even in a municipal
law trial.
The question of whether a foreign license had to be proved in an English
court did not involve the droits of Admiralty, the Crown's share in any
privateer's booty, nor did it involve the extent of the Crown's or Parliament's
legal power to control the actions of Englishmen abroad. Thus, the political
need for strict form was much less. The general coalescence of state authority
over the acts of individuals was nonetheless important to the emerging
commercial order. The issue of greatest importance to the new mercantile
classes was that goods and vessels taken by a privateer be submitted to a
tribunal for an in rem proceeding at which the owner could present his case, if
for no other purpose than to satisfy his insurance company that the goods had
in fact been taken under conditions covered by the insurance contract. 46 The
English assertions of the importance of a valid commission were thus never
applied with strictness to foreigners, and even as applied to the likes of
Captain William Kidd (to be discussed below) appear to have been
exaggerated. The situation was more or less definitively summarized in 1729
when a Majorcan Spaniard without a commission seized a British vessel as
82 The Law of Piracy
part of the war between Great Britain and Spain. The King's Advocate was
asked for an opinion as to whether the privateer without commission could
properly be treated in England as a "pyrat. " George Paul rendered an opinion
in the negative:
That by the Laws of Nations (strictly considered) commanders of uncommissioned ships
have no power or authority to take or seize the Vessels or Goods of a State in War, with
their Sovereign, but such capture has never been deemed piracy, provided the ship
taken, has been carried by the Captor, without fraud or delay, into the first proper port,
belonging to his Prince, and there delivered without embezelment, to the officers of
Justice, to be proceeded against as enemys goods; such ships and Goods are always
rendered in Great Britain as the perquisites of the Admiralty, without any certain [?]
[sic] profit or advantage to the seizor. 47
"A Pyrat," according to Dr. Paul, is "a Sea Thief" only. He suggested that
the Spaniard be detained until it could be determined whether he delivered
the captured goods and vessel to a proper port for legal condemnation.
Animo Furandi and Hostes Humani Generis
The dispute between Tindall and Oldys had other major implications for
the public international law of piracy which were not resolved by the statute
of 1700 bringing some "rebels" into the procedures applicable to "pirates" as
a matter of English municipal law. The civilians led by Oldys had given two
other distinct reasons than valid commissions why Vaughan and the other
commissioners should not have been treated as "pirates," and those reasons
stand regardless of the perceived invalidity of King James's commissions.
They were (1) that it is an essential element of the English municipal law
"crime" of "piracy" that the accused be acting for private motives ("animo
furandi") and not as part of a struggle for political power; and (2) that the
international law label by Coke's time was considered to require that the
accused be acting against all lucrative targets — that he handle himself as
"hostis humani generis" — and not the vessels of one flag or a narrowly
prescribed group of allied flags alone. The first is not entirely incorporated
into the concept of acting under a license since licenses, letters of marque and
reprisal, had been considered necessary at English municipal law to authorize
English takings of foreign goods or vessels from at least the 14th century, and
that requirement had existed wholly independently of any motive require-
ment from the earliest records. 48 The idea that "animo furandi" was an essential
element of the "crime" of "piracy" appears instead to derive from the
English Common Law relating to "robbery." 49 If that is correct, then the
requirement of predatory intent, taking for private gain as distinct from a
struggle for public power, would be a result of the use of the word "piracy" in
the nonoperative parts of the statute of 1536, and the growing identification
of that word with the private acts, "robberies," which were the real subject
matter of the statute. Whether the statute of 1536 itself intended this result is
Evolution in England 83
doubtful. It may be remembered that the commission of 1511, by which
Henry VIII authorized John Hopton to clear the area near English ports of
"praedones, pirates, exules, et bannitos" 50 did not distinguish between those with
private motives and those "exiles and outlaws" whose depredations might
have been for public political purposes in France or elsewhere. It might also
be remembered that until about 100 years after the statute of 1536 there was a
serious legal question as to whether the takings by commissioners of the
Barbary states' rulers should properly be considered to be "piracy"; the
public purpose of those takings, as seen from the point of view of the Barbary
states and in light of the British privateering practices of this time continuing
until the 19th century, cannot be seriously questioned. Goods taken by the
Barbary commissioners were openly sold and the relationship of the fisc of
those states to the practices of the commissioners cannot be doubted.
The evolution of the phrase "hostes humani generis" is also important to an
understanding of the conception of "piracy" in public international law at the
end of the 17th century. The phrase first appears printed in England in 1644 51
reflecting usage no later than 1634 and in a form that seems to imply still
earlier origins. The conception appears in Cicero, 52 but in a narrowly
restricted context relating to the politically significant communities of the
Eastern Mediterranean of Cicero's time and earlier who pursued a course of
behavior similar to that of the Vikings of about 800 years later. 53 The
evolution of this classical conception into a sense of outlawry was discussed
above. 54 The idea apparently was that the laws of war, which even in classical
days were "international" in the sense that gods who were not subordinate
one to another were fighting through earthly representatives as equals under
an overarching world order, were applicable to "hostes" in "&e//o," enemies in
war. "Virata" were "hostes" in a permanent belligerent relationship to all
communities, because they did not declare "war" before their attacks, and
attacked all with whom they were not in treaty relationships or who were too
strong to beat. This legal and practical situation had its impact on the law of
property, particularly the law regarding property changes as a result of war,
postliminium. In that single area, some analogy was drawn, apparently at
least in part reflecting a pejorative view o( those who interfered
unpredictably with peaceful commerce as the Roman Empire consolidated its
economic and political hold on the Eastern Mediterranean, between "pirata"
on the one hand, and criminals at Roman law, "praedones" and "latrones," on
the other. Now, by the early 17th century in England the same concept was
sought to be applied by analogy to the Western Mediterranean communities
of Algiers, Tunis, Salee and Tripoli, the Barbary states. As the legal results of
attaching the label "piracy" were conceived to be broader and broader,
apparently to some publicists involving outlawry of the "pirates" for all
purposes, the degree of political organization and economic importance of
the Barbary states made it advisable to withhold the word (and thus its legal
84 The Law of Piracy
results) from those politically stable and functioning communities. At the
same time, the word "pirates" had begun to be attached to all who interfered
without the backing of a substantial political and legal community in seaborne
commerce. Thus, it seems that the word shifted its meaning from raiders with
a substantial political organization in perpetual "war" with their neighbors,
to common robbers at English municipal law. The phrase "hostes humani
generis" apparently survived from the old concept, and was applied to the new,
without thought as to the real meaning of the word "hostes" in Latin, and its
legal consequences in public international law. Ironically, it was applied to
distinguish rebels fighting without a declaration against those who considered
themselves the legitimate government, from mere robbers and outlaws
within the jurisdiction of the English Admiralty tribunals. Yet it was the first,
the rebels, who were claiming the privileges of "hostes in hello," enemies in
war, and whose situation in fact bore some analogy to the concept o£
"pirates" in classical usage, while it was the latter, the robbers, who would
have been called not "pirata" but "praedones" or "latrones" by Roman jurists
and who were not "hostes" at all, but simply criminals by the rules applied in
English tribunals. And it was the desire to heap contempt on rebels that they
were labeled "pirates" and "hostes humani generis" by Tindall and those
accepting his definitions by the end of the 17th century, while from those
labels were drawn the legal results that they never had in classical days:
Outlawry.
But Robert Walton in 1693 had argued that the phase "hostes humani generis"
was not a mere description or a technical phrase. 55 He seems to have drawn
from it the idea that permanent and general predation was an essential
element of the accusation of "piracy"; that the accused "pirate," to deserve
the word, must have robbed the merchants of all nations without
discrimination by flag. It is tempting to read large conclusions from Walton's
short comment; it can certainly be suspected that Walton was well educated
in the classics and was repeating the classical use of the word, making that its
meaning in 1693 as a matter of public international law. If so, his conception
seems to have been anachronistic. Did he mean for English tribunals set up
under the statute of 1536 to try contemporary Vikings, such as Barbary states
corsairs and Malayan nobles, for "piracy"? Or did he merely mean that in his
view the word should not be attached to rebels or anybody else for whom the
application of English municipal law relating to robbery at sea was not
appropriate for other reasons?
One paradoxical conclusion seems inescapable: The phrase, "hostes humani
generis," the one phrase that all writers seem to agree should fit somehow in
any definition or description of "piracy," is the one phrase impliedly linking
the 17th century conception of "piracy" to classical writings, and in no way
fits the facts or the legal conclusions drawn by 17th century policy makers or
tribunals from those facts.
Evolution in England 85
The question was not firmly resolved as to whether it was proper to apply
to rebels the English municipal law procedures created to handle "robbery"
within the jurisdiction of English Admiralty. It apparently disturbed at least
some jurists removed from the immediacy of politics to apply those
procedures and words (and ultimate punishments) to people whose true
transgressions were better described as treason or mutiny, crimes under
English municipal law that might even be within the jurisdiction o{ the
Admiralty tribunals in some cases, but which were not apparently considered
to be among the "petty treasons" or "felonyes" covered by the statute of
1536. Disagreement also apparently remained with regard to the importance
of a motive of private gain (animo furandi) as an essential element of the crime.
And the phrase "hostes humani generis" appears to have remained in the minds
of some a key to withholding the label "piracy" and its legal results from
those who attacked the property of one or two nations only quite apart from
the question of public authority for those attacks.
Other serious questions remained as to the precise definition of "piracy " at
its least controversial level: The case of the private-gain motivated, all-prey
attacking, unlicensed Englishman. The simplest case, Rex v. Dawson (1696),
the one most frequently quoted for its charge to a grand jury defining
"piracy," is variously cited. 56 The charge was given by Sir Charles Hedges,
judge of the high court of Admiralty. The tribunal was composed of the same
eminent judges sitting in the Thomas Vaughan case, 57 which in fact was tried
immediately after the Dawson case on the same day, 31 October 1696;
Vaughan and two others ("J. Murphey" and "Tim Brenain"; they were not
tried with Vaughan) were arraigned formally while the Grand Jury was
hearing evidence after the charge by Judge Hedges quoted below. 58 The
reason for the extraordinary galaxy of legal talent in Dawson's case lay
apparently not in the importance of the defendants, or because any
particularly knotty legal issues, like the relationship o£ "piracy" to
"treason, " were involved in the sordid tale, but the fact that at an earlier trial
of the same defendants under the direction of Lord Chief Justice Sir John
Holt, "the jury, contrary to the expectation of the court, brought in all the
prisoners Not Guilty"! This new presentment was for other piracies,
according to the report. 59 The key portion of the Charge follows:
Now piracy is only a sea-term for robbery, piracy being a robbery committed within the
jurisdiction of the Admiralty. If any man be assaulted within that jurisdiction, and his
ship or goods violently taken away without legal authority, this is robbery and piracy. If
the mariners of any ship shall violently dispossess the master, and afterwards carry away
the ship itself, or any of the goods, or tackle, apparel or furniture, with a felonious
intention, in any place where the lord Admiral hath, or pretends to have jurisdiction,
this is also robbery and piracy. The intention will, in these cases, appear by considering
the end for which the fact was committed; and the end will be known, if the evidence
shall shew you what hath been done. 60
86 The Law of Piracy
The breadth of the charge is apparent; presumably it has been so often cited
because so broad. Under this charge, it would seem that violently taking
another's goods all within a single vessel is "piracy, "as is also "mutiny." It is
not necessary to show the "animo furandi" by any evidence other than the
taking itself; the "end" can be inferred from the facts surrounding the taking
but an intention to "take" would seem to have been all that was needed to
constitute "piracy."
Jurisdiction and Legal Interest
Naturalists v. Positivists (Again): Molloy v. Jenkins. Many questions remained
on the fringes which assumed great importance to the evolving concept of
"piracy" in Europe and its application to a rapidly expanding world
community based on energetic trade. These questions resolved themselves
into two basic ones: (1) What was the jurisdictional basis for English
prescriptions over the acts of foreigners outside of the territorial jurisdiction
of English courts; i.e., did English Admiralty jurisdiction extend to all
"piracies," no matter where committed or by whom? and (2) Was there any
legal authority left over, outside the court process, by which English
commissioners could suppress without bringing to an English tribunal the acts
of foreigners or Englishmen abroad that interfered with property rights and
trade; i.e., was there to be anything left of the public international law of
"piracy," or was the concept to be restricted to municipal law henceforth?
In his eloquent paean on the virtues of free trade and the evils of "piracy" in
1677, Charles Molloy set out his preferred answers. The jurisdiction of the
tribunals established under the authority of the Act of 1536 61 can be exercised
against any Englishman, apparently on the basis of his nationality alone, who
commits "Piracy, be it upon the Subject of any Prince or Republique in Amity
with the Crown of England," and apparently without regard to place so long
as it be within the jurisdiction of the English "Admiral" as established by
English precedents. 62 Foreigners could also be subjected to the same process,
but only if there were some basis for English legal interest in their actions,
such as the nationality of their victim being English 63 or if both the victim and
the accused "pirate" are physically present in England and the matter has not
already been clarified in the victim's own country, and the forms for personal
accusations are used. 64 An additional basis for jurisdiction over the acts of
foreigners was conceived to lie in the English claim to territorial jurisdiction
over large parts of the seas:
Piracy committed by the Subjects of the French King, or of any other Prince or
Republique, in Amity with the Crown of England upon the British Seas, are punishable
properly by the Crown of England only, for the Kings of the same have istud regimen
dominium exclusive, of the Kings of France, and all other Princes and States whatsoever. 65
Evolution in England 87
The British Seas at this time were considered to extend "by long custom and
usage" right up to the coasts of the Netherlands and France. 66 Obviously, the
conception supported by Molloy was not of "universal" jurisdiction over the
acts of foreigners abroad, but of jurisdiction in the normal English conception
of the reach of national sovereignty. That included jurisdiction based on the
nationality of the accused, on the territorial sovereignty over the place in
which the event occurred (not the far reaches of the Admiral's jurisdiction in
English ships wherever they might be, but only within the British seas), the
nationality of the victim, 67 and in a special procedure allowing a criminal-like
action to be brought on private initiative but not to enforce the "King's
Peace" — and then only in default of opportunity for the victim's own
sovereign to adjudicate the matter.
As to incidents "on the Ocean," i.e., beyond the reach of English
jurisdiction as normally applied, Molloy considered that there was an almost
unlimited scope for self-help:
If Piracy be committed on the Ocean, and the Pirats in the attempt there happen to be
overcome, the Captors are not obliged to bring them to any Port, but may expose them
immediately to punishment, by hanging them up at the main Yard end before a
departure; for the old natural liberty remains in places where are no judgments. 68
... So likewise, if a Ship shall be assaulted by Pirats, and in the attempt the Pirats shall be
overcome, if the Captors bring them to the next Port, and the Judge openly rejects the
Tryal, or the Captors cannot wait for the Judge without certain peril and loss, Justice
may be done upon them by the Law of Nature, and the same may be there executed by
the Captors. 69
A somewhat different view of the English law was taken by Sir Leoline
Jenkins. Under his rationale for allowing private justice to be meted out to
"pirates" he appears to have considered the Admiral's jurisdiction under
English law to extend everywhere on the seas as if territorially based. But
instead of requiring accused "pirates" to be brought in for adjudication, or
restricting private punishment to cases where adjudication is denied by a
foreign judge or impracticable for other reasons, and instead of relying on an
underlying law of nature to authorize private punishment, he construed the
English law to commission everybody a law officer:
There are some Sorts of Felonies and Offences, which cannot be committed anywhere else
but upon the Sea, within the Jurisdiction of the Admiralty . . . the chiefest in this Kind is
Piracy.
You are therefore to enquire of all Pirates and Sea-rovers, they are in the Eye of the Law
Hostes humani generis, Enemies not of one Nation . . . only, but of all Mankind. They are
outlawed, as I may say, by the Laws of all Nations; that is, out of the Protection of all
Princes and of all Laws whatsoever. Every Body is commissioned, and is to be armed
against them, as against Rebels and Traytors, to subdue and to root them out. 70
88 The Law of Piracy
Some time later 71 Jenkins expanded on this theory to lay the ground for an
extension of English Admiraltyjurisdiction to what later became "universal"
jurisdiction over "piracy:"
Every Englishman knows, that his Majesty hath an undoubted Empire and Sovereignty in
the Seas that environ these his Kingdoms ....
But besides these four seas, which are the peculiar Care, and as it were, part of the
Domaine of the Crown of England, his Majesty hath a Concern and Authority (in Right
of his Imperial Crown) to preserve the publick Peace, and to maintain the Freedom and
Security of Navigation all the World over: So that not the utmost Bound of the Atlantick
Ocean, not any Corner of the Mediterranean, nor any Part in the South or other Seas, but
that if the Peace of GOD and the King be violated upon any of his Subjects, or upon his
Allies or their Subjects, and the Offender be afterwards brought up or laid hold on in any
of this Majesty's Ports, such Breach of the Peace is to be enquired of, and tryed ... in
such Country, Liberty, or Place, as his Majesty shall please to direct. So long an Arm
hath GOD, by the Laws, given to his Viceregent the King, and so odious are the Crimes
of Piracy, Bloodshed, Robbery, and other Violences upon the Sea, that Justice observes
and reaches the Malefactors, even in the remotest Corners of the World ....
This Power and Jurisdiction which his Majesty hath at Sea in those remoter Parts of the
World, is but in concurrence with all other Soveraign Princes that have Ships and
Subjects at Sea. 72
This conception, that the territorial extent of the Admiral's jurisdiction in
English vessels could become the basis for jurisdiction over foreigners not in
English vessels whose acts do not directly affect English vessels, subjects or
goods, although reserving to all other sovereigns the equivalent jurisdiction
over all accused "pirates" (including, presumably, Englishmen committing
their "piracies" from English vessels against either other Englishmen or third
country nationals) seems rather much.
The problem of putting limits to the implications of Jenkins's position as a
judge in Admiralty supporting the widest possible English jurisdiction arose
when the practical position was reversed and Scots subjects of King Charles II
were sought to be tried as "pirates" in the Netherlands in 1675. They had held
licenses from England, which appear to have been exceeded; the question was
whether the foreign court had jurisdiction to examine into the validity of
those licenses and their legal extent. Jenkins, no longer a judge but deeply
involved as a trusted Royal adviser, was asked for his legal opinion by Sir
Joseph Williamson, the Secretary of State under King Charles II at the time
charged with principal political responsibility for Anglo-Dutch relations. 73
The legal opinion, dated from Nimeguen on 3 April 1675, caught Jenkins on
the horns of a dilemma, trying to reconcile his expansive view of English
jurisdiction with his fundamental positivism by which the consent of other
states affected must be construed from diplomatic correspondence, treaty or
practice before the English jurisdiction can be exercised. He began by
affirming his basic positivism, suggesting that the disagreement between
England and the Netherlands about jurisdiction over the Scots privateers,
Evolution in England 89
will never be decided; because there is no third Power that can give a Law that shall be
decisive or binding between two independent Princes, unless themselves shall please to
do it (which seldom happens) and then cannot be extended beyond the Cases expressed
by that Treaty. 74
He then drew an analogy between this case and another in which a French
merchantman had been tried in an English Admiralty court and although the
master of the vessel had successfully escaped, his ship itself and the goods on
board were confiscated as "pirate" goods, and a French formal objection
rejected.
[T]he King and his Council were pleased to adjudge, he was sufficiently founded in
Point of Jurisdiction, to confiscate that Ship and Goods and to Try capitally the Person
himself, had he been in hold; the Matter of Renvoy [reference to foreign, in this case
French, law] being a Thing quite disused among Princes; and as every Man, by the Usage
of our European [sic] Nations, is justiciable in the Place where the Crime is committed; so
are Pyrates, being reputed out of the Protection of all Laws and Privileges, and to be
tried in what Ports soever they are taken. 75
This logic, asserting that the law of the place of the crime determines
jurisdiction but that because "Pyrates" are not protected by jurisdictional
limits fixed by European practice among sovereigns, they can be tried in
whatever port they are taken, seems insupportable; the jurisdictional quarrel
was not between the English and the "pirate," but between the English and
the French sovereigns. Implicit is the denial of the exclusiveness of French
jurisdiction with regard to events occurring on board a French ship, and there
is no explicit reference to English victims or general English jurisdiction on
the high sea to substantiate the conclusion. Instead, it treats jurisdiction as an
assertion of sovereignty to be made on any territorial linkage between the
accused and the "sovereign;" if nothing else, the place of arrest, which seems
a minimal link that would exist in any case in which a criminal trial could be
contemplated as a practical matter. It appears to reach that conclusion by
supposing there to be a lacuna in the normal jurisdictional rules in the case of
accused "Pyrates," cutting them off from the protection of their own
sovereigns even before any act of "piracy" has been proved in a court. Since
the jurisdiction seems unlimited, resting on the mere accusation of "piracy,"
it amounts to making port calls by any vessel in a port ruled by a country other
than the country of the vessel itself, a very dangerous business. The risks were
probably increased by the notion that, as in the case recited by Jenkins, the
ship and goods once denominated "pirate goods" were subject to total
confiscation by the court itself.
But under this approach, it would have seemed that the Scots were
properly tried by the Dutch authorities, and that is the opposite conclusion
to the one Jenkins reached. The basis for distinguishing the two cases was to
downplay the nationality link evidenced by the flag of the "pirate" vessel as
a basis for interposition by the sovereign to protect his subjects, and to raise
90 The Law of Piracy
the license, "Commission," issued by the foreign sovereign to a position o{
prime importance:
But as the Law distinguishes between a Pirate who is a Highwayman, and sets up for
Robbing, either having no Commission at all, or else hath two or three, and a lawful
Man of War that exceeds his Commission [including, apparently, a privateer; the case of
the Scots privateers would not have been covered if Jenkins had intended his language to
draw a distinction between privateering and naval activity]; so I think, Sir, you had
Right to interpose for these Scots . . .; for tho' the Crimes were great and notorious, yet
the Proceedings whereby they were laid open and proved to be such, being void and null,
if the Judges did (as I am of Opinion they did) exceed the Bounds of their Power, it may
be truly said, the Crimes are but pretendu [supposed], being the Proofs made of them are
not sufficient in Law. 76
In the rest of the opinion, Jenkins finds two other arguments for English
jurisdiction to the exclusion of the Dutch. First, that a treaty between
England and the Netherlands, by not mentioning criminal trials in the article
dealing with reparations for damages left nationality as the major jurisdic-
tional link; 77 and second, that all ships in public service, whether naval,
privateer, or impressed "out of the Thames," are to some degree the arms of
the King, that taking them is "taking the King's Weapons out of their [the
property owners', the Scots'] Hands pro tanto," and thus that proper recourse
for those unjustly injured by the operation of those vessels is appeal to the
King, not the exercise of foreign jurisdiction over them. 78
The treaty argument seems to depend on matters of interpretation with
which the Dutch officials disagreed and which seem in other ways weak. 79
The King's Weapons argument would seem to apply to all vessels of English
flag, as at least potentially the King's weapons because subject to English law
which could order them at any moment into the King's service, thus to
reverse the earlier argument distinguishing a French flag vessel sought to be
protected diplomatically by France, and a French privateer that would be
hypothetically the least French vessel that could legally be excluded from
English jurisdiction by French interposition. The only thread that seems to
run through the argument by Jenkins is that England wins all the time. It may
thus be supposed to be an adversary's brief for the position most favorable to
England, but its persuasiveness as an incisive analysis of the international law
governing jurisdiction in cases of supposed "piracy" seems small.
The differences between Molloy and Jenkins, while appearing technical
and simply two different ways of approaching a single reality with no
practical implications, are really very significant indeed. Two quite different
conceptions of the law applicable to "piracy" are involved; conceptions
which reappear time and again in English and American courts and which
account, in part, for the inconsistencies in later decisions. From Molloy 's
point of view, there is a "natural law" forbidding any person to deprive
another of life or property without a higher motive supported by reason or
the historical evolution of the overall system. Life and property being the
Evolution In England 91
natural right of all, the taking of the life or property of another cannot be
consistent with natural law unless some other natural right, superior to the
rights of life or property of the victim, is involved. Such higher rights might
exist in the law that authorizes each person to defend himself and his property
even if it means depriving another — certainly if that other is the aggressor
seeking to achieve a taking not justifiable on some equivalent basis. It is
possible to speculate further as to Molloy's unexpressed thoughts, for
example, to wonder if the protection of the property of another wouldjustify
the taking of the life of an innocent bystander. But such speculation leads to
endless complications and is best left to the courts that find Molloy's basic
attitudes appealing.
Jenkins, as a judge dealing in Common Law procedures as applied in
Admiraltyjurisdiction to criminal cases, and as a "political" Privy Counsellor
to King Charles II, opposed Molloy's fundamental natural law approach with
an emphasis on commissions and legal authority. From this point of view,
there is no international law of "piracy "; only a municipal law authorizing its
subjects to act against some people which that municipal law designates
"pirates" on whatever basis it chooses. The limits to this approach seem
analogous to the limits that reality and politics fixed on the approach taken by
Gentili from the point of view of an international law expert, and it seems fair
to label both "positivist" jurists. They both trace the legality of action to
authorization by a state, which is conceived as exercising complete discretion
on the basis of political factors to grant or withhold the legal labels or
authorizations. The authorization determines the legality of action under the
system that grants or withholds authorization; there is no question of
morality, reason or motive on the part of either the "pirate" or the
"commissioner" apprehending him.
There are so many implications to this split in fundamental orientation that
a working out of the major ones is best left to works onjurisprudence. Only a
few can be mentioned here. For present purposes, perhaps the most important
is the utility of the Grotius (for that is where it first appears applied to the law
of "piracy" as known today)-Molloy-natural law approach to Common Law
and Admiralty tribunals. In the absence of a formal expression of public
policy in a writing like a statute or treaty, a tribunal must be guided by reason
in the light of higher principle, and the judges must be aware that their
capacity to function as legislators, attaching legal labels and results for the
sake of national interest, is severely limited by the structure of the forum and
their own training and experience. Judges, bound by rules of evidence, and
concepts of both substantive and procedural fairness to those accused o£
"crimes, " cannot impose what they would like the law to be; they are bound
by tradition and the English Constitution tracing back to Magna Carta and
before to apply the law as it exists reflected in the traditions and habits of
English society with only passing regard for what might be desirable for the
92 The Law of Piracy
future. To them, appeals to reason and higher principles recognized in the
legal tradition are liberating, and justify departures from the harshness of
rules that unmitigated would require the punishment of a person who is
morally innocent.
On the other hand, to legislators, whether in Parliament or acting directly
for the Crown as ministers or members of a council with discretion to make
law, or as naval officers or merchants seeking to protect their lives or
property or the lives or property of those who rely on them for protection, the
notion that deep analyses of the underlying values of society must be
undertaken before a "pirate" can be properly hanged is absurd. A simple rule
that life and property can legally be protected from any assault is attractive,
and the notion that any responsible person is commissioned by the operation
of law, whether via a commission issued by the Crown's officers or by direct
operation of the King's will without a written commission, is irresistable. The
world is simple and authority lies in the substantial people possessed of
property who undertake hazards for profit which the society considers
beneficial to all. If there are complications, then legislators or counsellors can
confront them as a matter of policy and change the rules to take account of
them. To practical men of affairs, and statesmen and merchants, particularly
sea captains, are practical men of affairs because the political and economic
system in England favors practical men of affairs for those functions in
society, the Jenkins approach is the only one that makes sense.
The Courts
Jurisdiction. As to jurisdiction and the nationality of the victims, in Rex v.
Dawson, 80 aside from repeating some of the language of the statute of 1536,
Hedges developed Leoline Jenkins's jury charge of the previous generation. 81
Hedges wrote:
The king of England hath not only an empire and sovereignty over the British seas, but
also an undoubted jurisdiction and power, in concurrency with other princes and states,
for the punishment of all piracies and robberies at sea, in the most remote parts of the
world; so that if any person whatsoever, native or foreigner, Christian or Infidel, Turk
or Pagan, with whose country we have no war, with whom we hold trade and
correspondence, and are in amity shall be robbed or spoiled in the Narrow Seas, the
Mediterranean, Atlantic, Southern, or any other seas, or the branches thereof, either on
this or the other side of the line, it is piracy within the limits of your enquiry, and the
cognizance of this court. 82
He ends with a rousing appeal to patriotism and glory to encourage the jurors
to do all they could "to the end that by the administration of equal justice, the
discipline of the seas, on which the good and safety of this nation entirely
depends, may be supported and maintained. " 83 The grand jury brought in bills
against the defendants, who were then tried, convicted and hanged. 84 Their
defenses were to the facts, seem unconvincing as reported, and raised no
further legal issues.
Evolution in England 93
Again, Hedges's language seems to reach very far. He did not address the
issue of whether an Englishman was authorized by implied commission or by
universal natural law to hang pirates wherever caught, nor did he really address
the question of universal jurisdiction: The applicability of English conceptions
of piracy as a crime to foreigners acting beyond the reach of English territorial
claims. In the case before him, no foreigners were defendants and no
extraordinary powers in uncommissioned pirate-captors were at issue. Thus the
entire proceeding can be rationalized as the application of English municipal
law to Englishmen through the normal processes of Englishjudicial administra-
tion, and the unqualified assertions of wider authority are mere puffery.
The most enlightening case of the "classical" series dealing with national
jurisdiction over foreign "pirates" is the notorious trial in 1705 of Thomas
Green before the High Court of Admiralty of Scotland. 85 The procedures of
Scotland followed the forms of the Civil Law; the statute of 1536 did not apply
directly as an act of Parliament in Scotland since the union of the crowns was not
until the accession of James I/VI to the throne of England in 1603, and the Acts
of Union uniting the Parliaments of England and Scotland were not passed until
1706-1707, 86 two years after Green's trial.
Captain Green was an Englishman, master of a ship owned by the Company
of Scotland Trading to Africa and the Indies in competition with the English
East India Company. He sailed with a commission authorizing him to attack and
suppress pirates, issued by King William III. 87 He and his crew, on arrival in
Edinburgh to report to their owners on a voyage to Africa and India, were
arrested for "piracy" and an elaborate series of factual allegations made to the
effect that they had plundered another Scottish vessel near Calicut, sunk the
vessel and tossed its crew over the side to remove witnesses. Green and his
accused English crewmen were convicted and Green, his first mate and one
other man were hanged, apparently to appease a mob. It was later discovered
that the supposed victims were alive and well in India and that the supposed
"piracy" had never in fact occurred; 88 all the testimony about it was explicable
on other grounds, such as currying favor with the mob.
From the point of view of this study, the important part of the case was its
handling of the jurisdictional question. Green was not a Scot, nor was his ship
considered a Scottish ship for purposes of jurisdiction, nor was any act
connected with the supposed "piracy" committed in Scotland. The tribunal did
not rest its jurisdiction on the Scottish nationality of the supposed victims,
although for popular opinion in Edinburgh that seems to have been the most
important connection between Green and Scots law. The tribunal took a higher
line, adopting the argument of the "pursuer" (prosecuting attorney):
That though the competency of the judge in criminals be ordinarily said, to be found either
in loco delicti (the place where crime was committed) or in loco domicilii (place of habitation of
the delinquents) or in loco originis (the place of their birth) yet there is a superior
consideration, and that is the locus deprehensionis (place where they were taken) where
94 The Law of Piracy
the criminal is found and deprehended, which doth so over-rule in this matter, that
neither the locus domicilii . . . nor the locus originis . . . doth found the judges competency, nisi
ibi reus deprehendatur (except the criminal be apprehended there). And so it is that here the
pannels [defendants] were and are deprehended, which happening in the cause of piracy,
a crime against the law of nations, and which all mankind have an interest to pursue,
wherever the pirates can be found; the Procurator Fiscal's [Prosecutor's] interest to
pursue is thereby manifest, and the pannels being here deprehended, cannot decline the
admiral's jurisdiction as incompetent. 89
This logic represents an assertion of universality of jurisdiction in the case of
"piracy" that goes far beyond the precedents. The normal rule was
apparently conceived to be that the tribunals of the locus delicti had
competence; which is a reflection of the "territorial" basis of jurisdiction
familiar to international lawyers. In the Green case it would have supported
English jurisdiction on the basis of the analogy between a vessel and territory
of the flag or licensing state. 90 Prescriptive or legislative jurisdiction based on
residence or nationality (locus domicilii or locus originis) of the defendant, it was
correctly argued, is not sufficient to give a particular court competence unless
the defendant is physically before the tribunal, i.e., in these pre-extradition
days, one of those places is also the place in which the defendant was
apprehended and detained (locus deprehendatis) . But the leap from the place of
physical detention supporting jurisdiction based on residence or nationality,
to finding prescriptive jurisdiction in the place of physical detention with no
other contact, is a giant leap supported in the pursuer's logic only by the
assertion that "piracy" is a crime against the law of nations and that all
mankind have an interest in pursuing it. This legal interest in pursuit (i.e., in
prosecution), the legally essential link between the incident and the
application of local law to it, the link that gives to a Scottish tribunal the
competence to hear the case without being considered an officious
intermeddler in matters of no concern to Scots law, is asserted to rest on the
characterization of "piracy" as a crime against the law of nations. From that
characterization is said to flow universal competence, including the
competence of a Scots tribunal.
Commissions Become Evidentiary Instead of Determinative. The
great case setting the English pattern concerning the need of an Englishman
for an English "commission" was the trial in 1701 of William Kidd. 91
Apparently Captain Kidd was well-known in England, and there is clear
evidence that there had been business dealings of some sort between him
(Kidd was a native Londoner) and the Earl of Bellamont, "Governor of New
England," an Irish peer. 92 The degree to which those dealings might have
involved the Governor in the profits of Kidd's adventures is not clear, but
Kidd was formally a privateer, operating under two commissions sealed in the
name of King William III, and it would have been entirely proper for the
King's representative in any colony to be on convivial terms with a successful
privateer.
Evolution in England 95
Kidd's two commissions were dated 26 January 1695 and 11 December
1695. The first specifically involved Kidd in the New World:
To our trusted and well-beloved Captain William Kidd, commander of the ship
Adventure-Galley, or to any other the commander for the time being, greeting.
Whereas we are informed that captain William Mase or Mace, and other our subjects,
native inhabitants of New-England, New-York, or elsewhere, in our plantations in
America, have associated themselves with diverse other wicked and ill-disposed
persons, and do against the law of nations, daily commit many and great piracies,
robberies, and depredations upon the seas in the parts of America and in other parts, to
the great hindrance and discouragement of trade and navigation, and to the danger and
hurt of our loving subjects, our allies, and all others navigating thereon upon their lawful
occasions: Now know, that we being desirous to prevent the aforesaid mischiefs, and, as
far as in us lies to bring the said pirates, free-booters, and sea-rovers to justice, have
thought fit, and do hereby give and grant unto you the said captain William Kidd (to
whom our commissioners for exercising the office of our lord high-admiral of England,
have granted a commission as a private man of war ...)... and unto the officers,
mariners, and others, who shall be under your command, full power and authority to
apprehend, stop, and take into your custody, as well the said captain Thomas Too, John
Ireland, captain Thomas Wake, and captain William Mase or Mace, as all such pirates,
free-booters and sea-rovers, being either our own subjects or of any other nations
associated with us, which you shall meet upon the coast or seas of America, or in any
other seas or place with their ships and vessels, and also such merchandizes, money,
goods, and wares as shall be found on board, or with them, in case they shall willingly
yield themselves: And if they will not submit without fighting, then you are by force to
compel them to yield. And we do also require you to bring, or cause to be brought such
pirates, free-booters, and sea-rovers, as you shall seize, to a legal trial; to the end they
may be proceeded against according to law in such cases .... And we hereby strictly
charge and command that you shall answer the same [accounting for every ship and
pirate taken] at your peril, that you do not in any manner harm or molest any of our
friends or allies, their ships, or subjects, by colour or pretence of these presents, or the
authority there granted . . . . 93
The second recites that there have been injuries and acts of hostility
committed by the French king and his subjects upon English subjects, that
"many and frequent demands" had been fruitlessly made for redress and
reparation, that the Privy Council had ordered "that general reprisals be
granted against the ships, goods, and subjects of the French king." It then
grants:
Commission to, and do[es] license and authorise the said Wm. Kidd to set forth in
warlike manner the said ship called The Adventure-Galley, under his own command,
and therewith by force of arms to apprehend, seize, and take the ships, vessels and goods
belonging to the French king and his subjects, or inhabitants within the dominions of the
said French king, and such other ships, vessels, and goods, as are, or shall be liable to
confiscation, and to bring the same to such port as shall be most convenient, in order to
have them legally adjudged in our high court of admiralty, or such other court of
admiralty as shall be lawfully authorized in that behalf . . . . 94
Kidd was first charged with the murder of William Moore, a gunner of the
Adventure-Galley; uncontradicted testimony had Moore muttering about Kidd
96 The Law of Piracy
not seizing a near-by Dutch ship, and Kidd, apprehensive of mutiny by a crew
bent on turning to piracy, bashing Moore on the side of the head with a handy
iron-bound bucket and cracking his skull. The incident occurred off the
Malabar Coast (southwest India) and the defense of imminent mutiny was
contradicted by several crewmembers called as witnesses testifying that the
threatened mutiny by Moore and others wanting to turn pirate had been
quelled some weeks before the killing.
The jury took only an hour to deliver a verdict of guilty under a charge
relating solely to the English law of murder by Lord Chief Baron Ward. 95
The next day, Kidd and his companions were tried together for "piracy."
The incident involved the capture "piratically and feloniously "of a merchant
ship, the Quedagh [Kedah] Merchant, of unknown flag, "upon the high sea . . .
about ten leagues from Cutsheen [Cochin], in the East-Indies, and within the
jurisdiction of the admiralty of England." The events were alleged to have
occurred on 30 January 1697 and the year after. 96
Three of the prisoners, James Howe, Nicholas Churchill and Darby
Mullins, sought to take advantage of a pardon proclaimed by William III 97 but
failed on the ground that they had surrendered themselves to an English
officer other than one of the four Commissioners named in the Proclamation.
Indicative of the attitude towards Kidd in London when the pardon was
proclaimed in 1698, the pardon covered all within the area east of the Cape of
Good Hope who had been guilty of "piracies or robberies committed by them
upon the sea or land" and who surrendered to the named Commissioners
within the period fixed by the proclamation, but specifically excludes
"Henry Every alias Bridgman, and William Kidd." 98
Kidd sailed from New York in 1696 and flew a French flag when chasing the
Quedagh Merchant." His defense was that the Quedagh Merchant had a French pass
and that he was commissioned to take French vessels; also that his crew had
threatened to mutiny if he did not take the Quedagh Merchant. 10 ° But he could not
produce the French pass (which he claimed was being withheld by the Earl of
Bellamont) and the court seemed disinclined to believe him. The court also
seemed to believe that the commission to seize French property did not extend
to the property of "Armenians" even if they had French passes. 101 In his charge
to the jury, Lord Chief Baron Ward emphasized what he regarded as Kidd's
repeated acts not consistent with the terms of his commissions:
Could he have proved, that what he did was in pursuance of his commissions, it had been
something: but, what had he to do to make any attack on these ships, the owners and
freighters whereof were in amity with the king? This does not appear to be an action
suitable to his commission. After he had done this, he came to land, and there, and
aftewards [sic; obviously "afterwards"] at sea, pursued strange methods, as you have heard.
The seeming justification he depends on is his commissions. Now it must be observed how
he acted with relation to them, and what irregularities he went by ... . [W]e are
confined to the Quedagh Merchant; but what he did before, shews his mind and intention
not to act by his commissions, which warrant no such things ....
Evolution in England 97
Now this is the great case that is before you, on which the indictment turns: the ship and
goods, as you have heard, are said by the witnesses to be the goods of the Armenians, and
other people that were in amity with the king; and captain Kidd would have them to be
the goods of Frenchmen, or at least, that this ship was sailed under French passes. Now if
it were so, as Capt. Kidd says, it was a lawful prize, and liable to confiscation; but if they
were the goods of persons in amity with the king, and the ship was not navigated under
French passes, it is very plain it was a piratical taking of them. ... If he had acted
pursuant to his commission, he ought to have condemned the ship and goods, if they
were a French interest, or sailed under a French pass; but in his not condemning them, he
seems to shout his aim, mind, and intention, that he did not act in that case by virtue of
his commission, but quite contrary to it; for he takes the ship, and shares the money and
goods, and, was taken in that very ship [Kidd had transferred from the leaky Adventure-
Galley to the sound Quedagh Merchant] by lord Bellamont, and he had continued in that
ship till that time, so there is no colour or pretence appears, that he intended to bring this
ship to England to be condemned, or to have condemned it in any of the English
plantations, having disposed of the whole cargo. . . . 102
Turning to the other prisoners, the charge to the jury first focused on the
three who had, by documents of indenture and witnesses proved themselves
to be servants of Kidd and others on the voyage:
Now, Gentlemen, there must go an intention of the mind, and a freedom of the will, to
the committing a felony or piracy. A pirate is not to be understood to be under
constraint, but a free agent .... It is true, a servant is not bound to obey his master but
in lawful things, which they say they thought this was, and that they knew not to the
contrary, but that their masters acted according to the king's commission; and therefore
their case must be left to your consideration, whether you think them upon the whole
matter guilty or no. . . , 103
As to the rest,
[W]e were, say they, under the captain, and acted under him as their commander: and,
gentlemen, so far as they acted under his lawful commands, and by virtue and in
pursuance of his commissions, it must be admitted they were justifiable, and ought to be
justified: but how far forth that hath been, the actions of the captain and their own will
best make it appear. It is not contested, but that these men knew, and were sensible of
what was done and acted, and did take part in it, and had the benefit of what was taken
shared amongst them: and if the taking of this ship and goods was unlawful, then these
men can claim no advantage by these commissions. . . . [I]f you are quite satisfied that
they have knowingly and wilfully been concerned or partaken with Capt. Kidd in taking
this ship, and dividing the goods, and that piratically and feloniously, then they will be
guilty within this indictment. . . . Whilst men pursue their commissions they must be
justified; but when they do things not authorised, or never acted by them, it is as if there
had been no commission at all. . . , 104
The verdict under this charge was guilty all, including Kidd, except for the
three servants, Robert Lamley, William Jenkins and Richard Barlicorn. 105
A trial on four further indictments was held, and after that another trial on
yet two more indictments, all relating to the taking of various specific ships
not French or piratical within the sense of the two commissions. The results
were the same as before, with the three servants acquitted and Kidd with six
98 The Law of Piracy
of his crew convicted. The charges to the juries by Mr. Justice Turton follow
the lead of the charge by Lord Chief Baron Ward. The major emphasis of the
evidence is to show which of the accused profited from the shares distributed
by Kidd after the sale of the captured valuables, the three servants either not
being shown to have received any share at all, or to have received a half share
which it is alleged they turned over immediately to their masters who were
Kidd himself, Abel Owens (the cook) and George Bullen (the mate). Kidd and
his six convicted crew members were then hanged. 106
It appears that as to the substance of the "crime" of "piracy," the charge
given by Justice Hedges was not repeated, but its substance, that "piracy"
was simply English Common Law "robbery" within the jurisdiction of the
Admiralty, was assumed without any analysis. The essential elements of the
crime are there, and no discussion of its borders was necessary or attempted.
The murder of his own crewman by Kidd was not charged as " piracy" but
directly as "murder." Whether this was done because the entire action
occurred in a single vessel under the English flag (and thus no need was felt to
refer to a legal word of art that might imply international significance) or
because all the actors, accused and victim, were English, or any other reason,
is not made clear. The same procedures were used by the tribunal in dealing
with this charge as in dealing with the charges of "piracy" in the other two
trials, thus it seems likely that the "felony" term of the statute of 1536 was
being used, under which the procedures for "piracy" and for "felony" trials
regarding events within the jurisdiction of the Admiralty were identical. 107
It seems significant that the action in excess of his commission did not
appear immediately to have involved the crime of "piracy." In Lord Chief
Baron Ward's charge to the jury, much was made of the failure of Kidd to
bring the captured Quedagh Merchant in for legal condemnation in accordance
with the terms of the commissions, but nothing is made of the possibility that
acting under the commission a mistake might have been made regarding the
subordination or French connection of the captured ship. The argument
regarding the possible immunity of the goods of merchants who are subjects
of nations in amity with the King of England was directed at Kidd's apparent
knowledge that they were not French or piratical (thus there being no
possibility of an act under the commissions which was excessive because
simply mistaken as to facts), and Kidd's ignoring the directions of his
commissions with regard to the disposition of his captures. Apparently, errors
might lead to loss of the prize in condemnation proceedings, and there was
every likelihood that egregious errors would result ultimately in revocation
of the commission as a practical matter. But such errors were not regarded as
enough to make a good-faith capture into a "piratical" act. The problem was
to prevent privateers using their commissions as a license to take everything
and then try to buy off the innocent victims of their taking cheaply one by one
if ever a victim found the privateer in a port with an English tribunal in it. The
Evolution in England 99
solution was to label such takings "piracy" when the privateer himself did not
allow the victim the opportunity to present his case in an English prize court
before the goods were sold and the proceeds distributed among the crew of
the privateer.
In fact, this solution was inconsistent with history and practical
convenience outside of the overstated rhetoric of the Kidd case itself.
Illustrative examples of non-piratical takings in excess of or without
commissions abound. On 16 December 1664 the Privy Council issued a
General Reprisal Order in the name of Charles II authorizing retroactively
the capture of Dutch vessels already taken without license by English
privateers at the start of the second Anglo-Dutch War. 108 At the start of the
third Anglo-Dutch War in 1672, Sir Leoline Jenkins sitting as a Judge in
Admiralty allowed an English captor his privateer's share of a Dutch capture
despite the lack of a commission, saying it was "out of grace " and because the
captor was "then in the service of the king." 109 But all captures of enemy
vessels during wartime were presumably "in the service of the king," and by
this logic there would be very few cases in which commissions would be
necessary at all, principally cases in which the accused "pirate" was merely
setting sail in violation of other regulations, or was accused of "piracy " after
an unsuccessful attack or attempt on a vessel later shown not to have been an
enemy vessel. 110 Thus it appears that the requirement of a license or
commission to exercise belligerent rights of capture at sea in the 17th century
was not as rigid as some of the later rhetoric about license requirements make
it appear. Kidd's problem was less his exceeding his license than in his
converting the captured property to his own use without legal condemnation
procedures required not only by the terms of the usual license (and his own
commissions), but by any conception of legal rights of property that
distinguishes between mere possession and other rights commonly associated
with property, such as rights to future possession and rights to use even
without possession. If this is correct, then a great deal of Lord Chief Baron
Ward's charge to the jury in the Kidd case is exaggerated, and the final
phrases 111 read in the context of the times do not make criminal all those acts
not authorized by a commission, but make the commission to do some things
relevant merely with regard to motive and other legal implications of things
done without the authority of a commission; that is not a rigid positivist
position, but almost a legal platitude.
In the Kidd case, the essence of the distinction between a commissioner
exceeding his authority and a "pirate" was conceived to be whether the
accused took the captured valuables in to a proper tribunal for
condemnation. If he did, regardless of the ultimate decision as to the
legality of the capture, he was no pirate. If he did not, he would appear to
have been a pirate as far as English municipal law was concerned. The
action in excess of a commission that would turn a privateer to a pirate was
100 The Law of Piracy
not a question of whose goods or ships he might take, but what he did with
them after the taking.
This interpretation of Rex v. Kidd is confirmed by a short review of the use
of licenses as a "police" tool of the centralizing government of England under
the Tudors. This subordination of private "police" activity to public
authority had begun in the earliest days of commissions aimed at hunting
"pirates." It may be remembered that in 1511 King Henry VIII had
commissioned John Hopton to
seize and subdue all pirates wherever they shall from time to time be found; and if they
cannot otherwise be seized, to destroy them, and to bring all and singular of them, who
are captured, into one of our ports, and to hand over and deliver them ... to our
commissioners. 112
It was also pointed out that in a series of commissions and proclamations
beginning in 1575 Queen Elizabeth had authorized various high officials to
license privateers to capture "pirates," but had consistently maintained that
no changes in title to any goods or vessels could occur unless the items had
been first submitted to an English court for condemnation or equivalent legal
proceeding; 113 that to the extent the legal opinion of David Lewes in 1579
concluded that by the law of the sea any person might seize pirate goods
without any commission, that opinion was ignored by the highest
administrators in England; 114 that in 1589 an Order in Council declared that no
title to goods derived from capture at sea unless decreed by an Admiralty
court; 115 and that an Englishman could find himself in serious legal difficulties
if he purported to hunt pirates without a commission after that time. 116 In
those cases in which a prize was taken with the English captor's license under
some cloud, as long as the prize was brought in to an English port for
condemnation, there does not appear to be any case in which the captor faced
significant difficulties. 117
On this view of things, it was impossible to maintain the jurisdictional
provisions of the statute of 1536 unamended, because taking the captured
valuables to England for Admiralty condemnation was clearly impracticable,
and sale without such proceedings would open the privateer to a charge of
"piracy" even if he had done his best to assure the legitimacy of the taking.
Moreover, for trials under the statute on a charge of "piracy," removal of the
accused and witnesses to England was expensive and time consuming. And, as
in the case of the possible dereliction by the Earl of Bellamont with regard to
the French pass Kidd alleged to have been found in the Quedagh Merchant,
serious injustice might be done to accused "pirates" simply through the
vicissitudes of bureaucracy and transportation in the early 18th century (and,
indeed, for two hundred years thereafter).
This last difficulty was solved by a statute usually dated to 1700 118
authorizing the holding of Admiralty Commissions to try "pirates" outside of
England. That statute repeats the substantive terms of the statute of 1536 and
Evolution in England 101
adds provisions authorizing the establishment of colonial Admiralty courts,
which could hear property cases in the usual Admiralty fashion. But, even
more significantly from the point of view of this study, it uses the word
"pirates, " for the first time in England, as a statutory word of art, prescribing
punishment as "pirates" for those subjects or denizens of England who
commit any act of hostility against other subjects of His Majesty at sea under
color of a commission issued by a "forreigne prince or state or pretense of
authority from any person," 119 and any captain or seaman betraying his
trust. 120 This general language seems to include within the English definition
of "piracy" acts within a single vessel not involving robbery, such as mutiny
and barratry (embezzlement of ship or cargo by a captain or other person
with limited rights of disposal). It thus revived the Coke-Hale definition of
"piracy" as a form of "petty treason" including "mutiny." 121
This statute was amended many times as the English (British, after 1707 and
the Act of Union with Scotland) 122 modified their municipal law in various
technical ways not pertinent to this study. 123 The next major adjustment of
British municipal law to raise the question of the relationship between that
law and the international law relating to "piracy " was not until 1825, when a
bounty paid out of public money was authorized for the destruction of foreign
"pirates." 124
It is possible to conclude from the fact that the prescriptions of that
statute were restricted to English subjects or denizens that the statute did
not purport to incorporate into English law any particular rules of
international law. It did not seek to define "piracy" in any sense that would
imply an English assertion that the crime called "piracy" for purposes of
English tribunals was equally punishable by those tribunals if the
"criminal" were a foreigner acting outside the territory of England — or
even within England.
"Piracy" or "Felony" in English Law as Adopted in American
Courts. The first known trial under the authority of the Act of 1700 was held
in the new world. Captain John Quelch and some of his crew were tried in
Boston beginning 13 June 1704. 125 Nine separate articles were levied against
Quelch and his men with regard to actions taken by them against Portuguese
victims (England being then at peace with Portugal) in November 1703 to
February 1704. The points of similarity in eight of the nine charges against
Quelch are the identical recitals:
For that you, the said John Quelch, with divers others, ... at or near [such a place] ... by
force and arms, upon the high sea (within the jurisdiction of the admiralty of England)
[parentheses sic] piratically and feloniously did surprize, seize and take [a described
vessel] . . . belonging to the subjects of the king of Portugal, (her majesty's good ally)
[parentheses sic] and out of her, then and there, within the jurisdiction aforesaid,
feloniously and piratically did, by force and arms, take [described articles of stated
value].
102 The Law of Piracy
The ninth article is the only one that separates "feloniously" from
"piratically" and therefore seems significant. The difference is in the last
clauses which say:
. . . and then and there, within the jurisdiction aforesaid, did feloniously kill and murder
the commander thereof, and wounded several others, and out of her piratically, by force
and arms, did take and carry away [various listed items] contrary to the statutes in that
case made and provided.
The reference to statutes in the last line seems to relate only to this ninth
article, and, if so, its meaning is obscure. If it is intended to apply to all the
preceding articles charged against Quelch, it seems mere form; there is no
express indication which precise statutes are intended, presumably the
statutes of 1536 and 1700.
It appears to have been the conception of the officials making the articles,
that "piratically" referred to the taking of property by force and arms, and
that meshes with the idea of "piracy" being the Admiralty term for robbery
as stated by Sir Charles Hedges in his 1696 charge to the jury in the Dawson
case. Killing does not appear to have been considered part of "piracy, " but to
be included in the "felony" as well as the "murder" term of the statute of
1536. Since neither "murder" nor "robbery" of a stranger was a "felony" in
1536 and the statute of 1536 in fact does not use the word "piracy" in its
substantive provisions, and uses the words "robberies and murders"
directly, 126 this evolution of form with regard to the words " piratically" and
"feloniously" needs some explanation. Apparently, the statute of 1700,
having adopted the word "piracy" into the legal vocabulary in a way directly
pertinent to the Quelch case, "piratically" was adopted in the articles to
reflect the new statutory language relating to jurisdiction, and "feloniously"
to reflect an evolving definition transferring the "petty treason" label to
some serious crimes in which the legal results of "petty treason" were sought
to be applied without all the feudal-status baggage of the phrase.
The opening statement of Paul Dudley, Attorney General and Her
Majesty's (Queen Anne's) Advocate for the Court of Admiralty, to the
commissioners holding the trial indicates how far English thought had come,
building on the misinterpreted excerpts of Roman opinion to make a
municipal crime of "piracy," and then call it part of international law:
The prisoner at the bar stands . . . charged with several piracies, robberies and murder,
committed by himself and his company, upon the high sea (upon the subjects of the king
of Portugal, her majesty's good ally) the worst and most intolerable of crimes that can be
committed by men. A pirate was therefore justly called by the Romans, hostis humani
generis: And the civil law saith of them, that neither faith nor oath is to be kept with them;
and therefore if a man that is a prisoner to pirates, for the sake of his liberty promise a
ransom, he is under no obligation to make good his promise; for pirates are not entitled
to law, not so much as the law of arms; for which reason it is said, if piracy be committed
upon the ocean, and the pirates in the attempt happen to be overcome, the captors are
not obliged to bring them to any port, but may expose them immediately to punishment,
Evolution in England 103
by hanging them at the mainyard; a sign of its being of a very different and worse nature
than any crime committed upon the land; for robbers and murderers, and even traitors
themselves, may not be put to death without passing a formal trial. . . . 127
Aside from other errors or exaggerations, the notion that "pirates" could be
hanged by whoever catches them in an attempt seems inconsistent with the
terms of Kidd's commission to hunt down "pirates," which is certainly
typical in this regard. That commission required Kidd "to bring, or cause to
be brought, such pirates ... as you shall seize, to a legal trial" whether the
pirate was taken in battle or otherwise. 128 Dudley's notion also seems
inconsistent with the very idea that a commission was necessary to hunt
"pirates," and, although the lack of a commission in many cases could be
cured retroactively through a grant or by judicial reasoning, the centralizing
positivist jurists and administrators from the time of Queen Elizabeth, a
century and a quarter before, had insisted on the legal form being
acknowledged. Dudley followed naturalist logic identified in this area with
Charles Molloy. He appears to have felt that natural law rights of property
and self-defense, possibly coupled with the sense of collective defense of
property and life believed by naturalist philosophers of the time to underlie a
hypothetical "social contract" 129 on which all political structures must rest
for their natural law power to exercise law-making authority, were enough
to justify the hanging of "pirates" defined as violators of those natural rights.
But why he chose to express those sentiments before this court in this case is
not known. The formal need for a commission before an Englishman could,
by the municipal law of England, legally hunt pirates had been well
established in practice by 1704.
Quelch's defense went to the facts and the form of trial under the statute of
1536. On those points his arguments were rejected and he was convicted. No
question about the essential elements of the offense of "piracy" was raised nor
any jurisdictional argument. 130
The trials of the men associated with Quelch indicate some additional
undercurrents associated with the conception of "piracy" in 1704. Three
black slaves had been forcibly taken from their owners by Quelch and served
as cooks and in other non-combatant capacities in the crew. Presumably they
had no share of the spoils. They were acquitted. The record does not indicate
the basis the court felt that it had to apply any system of law to these men,
who, by the law of Boston at the time were not subjects of England. The
Queen's Advocate (Dudley?) following the naturalist approach adopted for
the Quelch trial, addressed the point:
[T]he three prisoners now at the bar are of a different complexion, it is true, from the
rest that have been arraigned upon these articles; but it is very well known, that the first
and most famous pirates that have been in the world were of their colour; 131 and negroes,
though slaves, are as capable of taking away the lives and estates of mankind, as any
freemen in the world. . . . 132
104 The Law of Piracy
The implication, that international law applied to all men regardless of their
legal status of bondage under any particular municipal law, and that "piracy"
was a crime under a naturalist version of international law, does not appear to
have been the subject of any comment at the time. The positivist counter-
model, that the English law of "piracy" under the various statutes of the
realm applied to slaves as to free men as a matter strictly of English law, was
not posed either.
Six Englishmen members of Quelch's crew were then tried and convicted
of "piracy" despite their testimony that they took no active part in the
captures. The tribunal pressed them on two points: (1) Did they ever protest
against the action; and (2) Did they take a share of the spoils. The evidence
was that they made no protest and did share in the takings. Several other
members of the crew then changed their not guilty pleas to guilty, and two
other trials were held; all were sentenced to death. There were two final
acquittals; one, the ship's clerk who appears to have been sick throughout the
entire voyage and took no part in the captures and received no share of the
takings; the other, a servant boy only fifteen years old who was adjudged not
guilty as a matter of the court's indulgence. 133
The Classical Publicists: Zouche to Bynkershoek
The "Law of Nations." The phrase "law of nations" in 1705 was itself
ambiguous. Richard Zouche, an English Admiralty judge and civilian,
distinguished in 1650 between "the law of nations" and "the law between
nations. "The latter, which he called in Latin "Jus inter Gentes," he regarded as
the descendant of the Roman "Jus Feciale" and "has to do with the conditions
of kings, peoples, and foreign nations, in fact with the whole law of Peace and
War." The former, the "law of nations," he defined as:
[T]he common element in the law which the peoples of single nations use among
themselves; . . . the law which is observed in common between princes or peoples of
different nations. 134
This use of language would imply that to the degree "piracy" is regarded as a
crime against the "law of nations, " it is merely an act proscribed by the laws
of all separate states; the fact that an act is forbidden by all states does not
address the problem of officious intermeddling — of one state applying its
version of the law through its tribunal to a person acting beyond the range of
that state's legal interest. 135
To natural law jurists, there are two ways to bridge this gap in logic. One is
to eliminate the distinction between the "law of nations" and the "law
between nations" posited by Zouche. That had been the course taken by
Samuel Pufendorf in 1660 on the argument that the substance of both systems
of law rested on "reason" alone, and that therefore there could be no
differences in the law based on differences in the character of the actors,
which he regarded as small:
Evolution in England 105
. . . [T]he Law of Nations ... in the eyes of some men, is nothing other than the law of
nature, in so far as different nations, not united with one another by a supreme
command, observe it, who must render one another the same duties in their fashion, as
are prescribed for individuals by the law of nature. On this point there is no reason for
our conducting any special discussion here, since what we recount on the subject of the
law of nature and of the duties of individuals, can be readily applied to whole states and
nations which have also coalesced into one moral person. Aside from this law, we are of
the opinion that there is no law of nations. . . . 136
From this point of view, the problem of intermeddling could be avoided by
regarding each country's law applying to "piracy" as a national means of
applying the underlying natural law to individuals who have transgressed it;
there would be universal "standing" to apply national law because the
national law is a mere expression of the universal natural law applied by one
subject of that law (the state) to another (the individual "pirate"). The special
interest of the state derives from the universality of the system.
Another way to bridge the gap in logic was the way expressly adopted by
none at this time, but implicit in much naturalist writing, to call the right to
commerce a "natural right "justifying "war" with states impeding commerce
between willing partners. 137 If war against states could be justified on the basis
of interference with the natural right to trade, a fortiori it would seem that
those obstructing such trade without commissions issued by the authority of
states through their governments could be blown away. If war against them
was not legally appropriate, then the "pirates" were not protected by the
laws of war and could simply be hanged when captured. From this point of
view, the criminal law procedures by which "pirates" were condemned and
hanged were mere municipal law safeguards against the abuse of the
authority every man had to destroy those who obstructed trade, "pirates."
It is noteworthy that both these lines of legal thought rest on calling
"piracy" a crime under the law of nations, the "law of nations" being
conceived as a natural law system binding on all men in all places because
based on reason. 138
The relationship between municipal law and international law so central to
an understanding of the conception that "piracy" should be suppressed and
that the normal jurisdiction of municipal law tribunals would not suffice to
suppress it when foreigners and possible foreign commissions were involved,
was never fully resolved during the 18th century. Individual jurists certainly
had their own favorite jurisprudential models into which they fit "piracy" for
the sake of particular cases, legislation, or treaties. But the fundamental
orientation of the "positivists, " to whom all questions seemed best considered
as questions of national policy, and the orientation of "naturalists," to whom
all questions seemed best considered as questions of international justice and
natural rights, were irreconcileable.
The Growth of Positive Law Concepts as an Implication of National
Sovereignty. Those who tried to raise their sights above the jurisprudential
106 The Law of Piracy
dogmas of various advocates and political demands of practical statesmen and
their national constituencies, restricted their analyses to the specifics of
individual cases and incidents, leaving overall patterns to others. Typical of
this, and most influential in later times, was Cornelius Bynkershoek, a Dutch
jurist whose major work, Questionum Juris Publici, appeared in 1737. 139 In
addition to arguing on the basis of positivist, policy-oriented logic that the
Barbary states were not ''piratical" in any legal sense, 140 he began with the
proposition that "those who rob on land or sea without the authorization of
any sovereign, we call pirates and brigands." 141 In later passages he uses the
world "pirates" only in connection with those who sail, but he leaves
unanswered the question as to whether "pirates" who, once having sailed,
commit depredations only in raids ashore, are punishable as if their
depredations were at sea — whether the word "pirate" applies to all who
begin their depredations from a ship or those who make a mere sea-departure
without a license from some Dutch port regardless of the place of their
depredation. To avoid the problem he asserts a simple positivist position based
on Dutch municipal law: "[W]e punish as pirates those who sail out to
plunder the enemy without a commission from the admiral, and without
complying with . . . the rules of the Admiralty of . . . 1597. " 142 He then cites
other Dutch statutes as authority for terming "pirates" those Dutchmen who
sail under a commission from a foreign prince or of several princes. 143 His
supporting argument, that "it is indeed very reasonable that those should be
treated as pirates" because "if this were permissable they might plunder
neutrals and bring our state into war with other nations, " 144 argues the Dutch
municipal legal policy to be reasonable to curb the depredations of Dutch
nationals even if those Dutchmen are not "criminals" (because licensed by a
sovereign) at international law. But Bynkershoek did not assert that The
Netherlands had a duty at international law to restrain the licensed activities
of Dutchmen abroad. Ultimately, Bynkershoek's logic does not unite
international and municipal law, but asserts the dominance of policy for
international affairs and municipal law as the basis for controlling Dutch
nationals abroad. Support for this analysis lies in Bynkershoek's adverting to
the fact that
There are also various other persons who are punished as pirates on account of the
atrocity of their crimes, though they are not actually pirates, as for instance those who
sail too near the land contrary to the prohibition of the sovereign, . . . commit frauds in
matters of insurance . . . and also those who cut the nets of the herring-fishers. . . . 145
It is interesting confirmation of arguments presented earlier with regard to
the evolution of English conceptions that the word "pirate" seems to have
been used in a promiscuously pejorative sense in the late 16th century, and had
its meaning narrowed somewhat in 1696, presumably in coordination with the
English war against Louis XIV over the exile of James II at that time. 146 But
the narrowing was not in the direction only of making "piracy" the proper
Evolution in England 107
legal term for robbery within the jurisdiction of the Dutch Admiralty; it also
followed the English view that certain forms of licensed activity involving
depredations by foreigners against foreign vessels might be denominated
"piracy" and treated as criminal by the municipal law of the prescribing
state. Where the English prescriptions arising out of the struggle over the
Stuart exile had focused on the legal power of the English government to
consider null a commission issued by an unrecognized "sovereign" (James II)
or to consider as "piratical" even in the absence of legislation the taking by an
Englishman of a license from the King of France to raid English shipping, the
Dutch legislation cited by Bynkershoek rested on Dutch jurisdiction to
prescribe with regard to belligerent action by foreign-licensed foreigners in
neutral Dutch coastal waters. It seems that once the conception was accepted
that the word "piracy" would be a useful pejorative that could be applied
with capital legal results by an act of municipal legislation, the evolution of
the word was away from "normal" municipal law crimes (whether at sea or
not) and towards the political activities of individuals. Under the system of
letters of marque and reprisal by which some political activities were highly
profitable to individual adventurers, the word "piracy" seems to have been
used to identify such adventurers with motives of base profit when they were
fighting for causes not approved by the municipal legislators, and the
definitions of "pirates" as "robbers within the jurisdiction of the Admiralty
courts" were simply expanded to catch those adventurers in the legal web. In
this evolution, the net-cutters and insurance fraud criminals proved to be too
small to remain enmeshed in that web, and the older laws came to seem an
historical oddity as the connotations of the word "pirate" changed.
Bynkershoek also discussed the jurisdictional issues. He asserted that a
foreigner committing depredations on Dutch property could properly be
tried by a Dutch tribunal "if he is arrested among us, " but suggested that if he
had a commission, even if he had exceeded it, there would be some doubt. He
referred to a negotiation between the Dutch and English in 1667 concerning
the disposition at law of privateers who had not stopped after their
commissions expired at the end of the second Anglo-Dutch War:
The English contended that the sovereign who had given the letters ought to have
jurisdiction; the envoys of the States-General urged that those who committed hostile
acts without a legitimate commission from their sovereign, should be treated as pirates.
That it was the law of nations that such could be punished by any sovereign into whose
hands they chanced to fall. . . . The French envoys at that time concurred in this view,
and this principle was accordingly adopted by the English and the States-General. 147
Since only the sovereigns whose subjects were victims of the unlicensed
depredations were involved, and there is no suggestion that France should
have prosecuted English privateers whose victims were only Dutch, it is
difficult to say just how far this sweeping assertion was intended to carry. No
cases are cited of "pure" universal jurisdiction by Bynkershoek or any other
108 The Law of Piracy
writer of this time despite the broad statements and possible cases, like the
embarrassing Green case in Scotland, 148 from which the appearance of
support in practice could have been derived. The broad assertions coupled
with the refusal to support them with possible cases, and the total absence of
statutory support for judges' or prosecutors' grand assertions in this regard,
seem anomalous.
Bynkershoek expressed some doubt that a privateer exceeding his
commission was necessarily a "pirate," and seemed to regard the procedure
by which the sovereign issuing the commission would be the sovereign whose
tribunals should hear the case as the best solution. This is not explained except
by citation to a peace-treaty of 1662 between France and the Netherlands in
which it was agreed that only the sovereign furnishing a commission should
hear any cases of prize resting on the validity of the commission. 149 From his
point of view, if that sovereign turned the prize back to its prior owner, there
would be no issue to resolve, while if the unauthorized taking were upheld,
whatever problems might arise could be discussed as a possible international
delict between the two sovereigns involved. This seems to treat the question
of commissions as simply an issue of property law, not of "piracy " at all. Since
a guilty intention is required for any criminal conviction, perhaps that is a
sensible approach; but it is surely more congenial to "positivist" adminis-
trators than to "naturalists" concerned with "justice" and the application of
the "law of nations."
Bynkershoek also dealt directly with the question of jurisdiction, terming
"difficult" the question of whether a foreigner who has committed
depredations upon other foreigners could be tried by Dutch courts. He stated
it as a dilemma:
If . . . the laws ordain that no one may sell ships and goods captured on a foreign
commission, except when condemned at a port of the sovereign issuing the commission,
it might seem unjust to give an action against the captor, either to the government, on a
criminal charge, or to the foreign owners of ships and goods, for the damage suffered.
Both foreigners ought to have the same rights. . . . And yet it would be hard and
unexampled to deny access to the courts to the owners of the ships and goods who found
their property here in the hands of a foreigner who might depart at any moment. And if
you grant that, you can hardly refuse the captor. 150
There is substance to this argument if "piracy" were essentially a matter of
licenses, as Bynkershoek and the other positivists conceived it. There seems
little substance when the argument is applied to totally unlicensed
depredations; and that is a question disposed of in England by the Statute of
the Staple in 1353, 151 which Bynkershoek did not address.
The Classical English Synthesis: Blackstone and Wooddeson. The
English law was summarized in its classical form by both Sir William
Blackstone and Richard Wooddeson, the first and third Vinerian Professors
of English Law at Oxford University. Blackstone, publishing in 1765-1769, 152
Evolution in England 109
took a basically naturalist view of the "law of nations" adopting the
underlying concept that the "law of nations" is essentially the national law of
many states and not the law between states:
But since in England no royal power can introduce a new law, or suspend the execution
of the old, therefore the law of nations (wherever any question arises which is properly
the object of its jurisdiction) is here adopted in its full extent by the common law, and is
held to be a part of the law of the land. And those acts of parliament, which have from
time to time been made to enforce this universal law, or to facilitate the execution of its
decisions, are not to be considered as introductive o{ any new rule, but merely as
declaratory of the old fundamental constitutions of the kingdom; without which it must
cease to be a part of the civilized world. Thus in mercantile questions, such as bills of
exchange and the like; in all marine cases, relating to freight, average, demurrage,
insurances, bottomry, and others of a similar nature; the law-merchant, which is a
branch of the law of nations, is regularly and constantly adhered to. So too, in all
disputes relating to prizes, to shipwrecks, to hostages, and ransom bills, there is no other
rule of decision but this great universal law collected from history and usage, and such
writers of all nations and languages as are generally approved and allowed of. 153
Blackstone considered that there were three offenses that could properly be
termed crime-like "offences" against the law of nations: (1) Violations of safe
conducts (i.e., laisser passer), (2) infringement of the rights of ambassadors, and
(3) piracy. His brief comments on piracy mix natural law and positive law
concepts in a strange amalgam:
Lastly, the crime of piracy, or robbery and depredation upon the high seas, a pirate
being, according to Sir Edward Coke, hostis humani generis. 154 As therefore he has
renounced all the benefits of society and government, and has reduced himself afresh to
the savage state of nature, by declaring war against all mankind, all mankind must
declare war against him: So that every community hath a right, by the rule of self
defence, to inflict that punishment upon him, which every individual would in a state of
nature have been otherwise entitled to do, for any invasion of his person or personal
property. . . .
The offence of piracy, by common law, consists in committing those acts of robbery and
depredation upon the high seas, which, if committed upon land, would have amounted
to felony there. But by statute, some other offences have been made piracy also. . . . 155
To understand Blackstone 's thought, and the American thought that grew out
of the immense influence of Blackstone 's Commentaries in the early days of our
Republic, it must be borne in mind that his use of the phrase "law of nations"
assumed the supremacy of municipal law in particular whatever the basis in
policy, reason or historical practice for the identity of prescriptions applied
by the courts of different nations. Moreover, his use of the phrase "common
law" is certainly not the same as the technical usage of Lord Coke, to whom
the "Common Law" of England meant the law applied by English "Common
Law" courts, as distinguished from the other laws applied in England by
Admiralty, Equity and other of the King's courts. To Blackstone, the law
merchant was part of the law of nations adopted into the English "common
110 The Law of Piracy
law" because interpreted and applied throughout England by English courts; to
Coke the law merchant was applied in the courts of the Staple by administrators
appointed for the purpose, and was not part of the Common Law system in
England. 156 Similarly with "piracy. " Thus Blackstone's calling piracy an offense
by common law means merely that it was an offense punishable in England by
English courts, and to the degree not based on statute, was capable of being
refined and modified by judicial interpretation.
Blackstone's social contract naturalism seems to leave all the questions of
Bynkershoek unanswered. If the right of a community to exercise its
jurisdiction over a "pirate" rests on an a priori rule of self-defense, as Blackstone
said, then that jurisdiction rests on the state exercising it being a state victimized
by the particular "piracy" that is the subject of the trial: that state must have had
its "person or personal property" invaded by the "pirate." Furthermore, the
law of self-defense in England and many other places is very limited in its
application, essentially to cases of inescapable threat; it does not authorize
universal policing of a community by a strong policeman without authority
derived from community consent through the positive law. It does not justify
officious intermeddling or universal jurisdiction in the absence of a legal interest
in the case.
Finally, the arguments based on war imply that the law of war applied to
relations between "pirates" and the rest of mankind. That would comport with
Roman writings, but does not seem to have been what Blackstone really had in
mind, since criminal trials are not the result of capture in war. In sum, the simple
language of Blackstone in this area disguises the legal complexities really
involved without giving any orientation that would help lawmakers or
attorneys find their way through the thickets of the law.
Richard Wooddeson, the third Vinerian Professor of English Law at Oxford,
began lecturing in 1777, and his monumental treatise derived from thirteen
years of lecturing was published in three volumes in 1792 (volume I) and 1794
(volumes II and III). 157 To Wooddeson, the law of nations was not merely the
law of each state conforming in substance to the law of other states. It included
also what Zouche called the law between states:
The law of nations is adopted and appealed to by civilized states, as the criterion for
adjusting all controversies proper to be so decided. This is the rule by which the property of
captures at sea is determined, more especially when the subjects of independent powers are
interested in the litigation. In such case neither the customs of the British admiralty, nor
British acts of parliament, can, as such, be of sufficient authority and avail. But the law of
nations is part of the law of England. 158
From this point of view there does not appear to be much distinction between
the law of nations in Blackstone's sense and the law between states, and it would
seem as if Wooddeson were prepared to use that law, whatever it was, as a
looming omnipresence hovering over English law as a basis for interpreting, and
perhaps overriding, the customs of the Admiralty and even acts of Parliament.
Evolution in England 111
Turning to piracy directly, Wooddeson defined it: "Piracy, according to
the law of nations, is incurred by depredations on or near the sea, without
authority from any prince or state." 159 His authority for that statement was
Jenkins and Molloy, whose generalities he quoted raising some technical
issues that seem of marginal importance to this study. 160 He agreed with
Bynkershoek and Jenkins that the Barbary states cannot be "piratical" in any
meaningful legal sense, 161 applying Cicero's definition of a state: "They have
a fixt domain, public revenue, and form of government. " In support of this
conclusion he cited European state practice of treating the Barbary
communities as states with which they "sometimes carry on war, sometimes
stipulate for peace, with them as with other nations." 162
The major contribution of Wooddeson to the evolving conception of
"piracy" came from his notion of general international law, the law of
nations, 163 being a single system including not only the law between states and
the strictly positivist coordinated law of many states, but also a degree of
coordination between the two. The issue on which he focused was whether a
license which was technically inapplicable, and therefore could not be used to
exculpate a captain of a charge of "piracy," was really necessary if in fact the
captain did not hold himself out to be an enemy of all mankind, robbing
indiscriminately, or, indeed, robbing anybody at all, since he took all his
captures in to proper courts for prize adjudication. There was, therefore, a
taking of possession of the property of others, but not of full property rights;
not of a right to transfer title. It was, in a sense, Sir Francis Drake's case,
raised to a new level of sophistication:
His majesty granted letters of reprisal to sir Edmund Turner and George Carew against
the subjects of the States General, which grant was called in by proclamation, and
superceded [spelling sic] under the great seal. Then Carew, without Turner, having
deputed several to put in execution the said commission, who acted under it
accordingly, and being indicted for piracy, it was resolved by all the judges and the rest
of the commissioners then present, that the procedure of the captain and his mariners
was not a felonious and piratical spoliation, but a capture in order to adjudication [sic],
and tho' the authority was deficient yet not being done animo depredandi, they were
acquitted. 164
Wooddeson approved of this result, commenting that "This case is a strong
proof of the efficacy of a public or national commission," implying that had
the case been left to positivist-minded administrators concerned with
assuring the supremacy of the commission-granting (and withdrawing)
authority, the result would have been different, and, to the extent different,
unjust. To Wooddeson, then, to be "piracy" there had to be a taking that was
both unlicensed and animo deprendandi (or animo furandi, to use the more familiar
phrase); the common law "robbery" elements had to be there as well as the
positive law departure from authorization. To further isolate the definition
and remove from it the positivist emphasis on commissions, Wooddeson notes
112 The Law of Piracy
that in another case in 1782, an indictment of a British subject (Luke Ryan) on
a charge of "piracy" for taking a Dutch commission was in fact not an
indictment "for piracy, generally, by the law of nations, but for that being a
natural born subject he piratically, & c, against the form of the statute" [emphasis
sic] did various things. Where the positivist officials might have wanted to
extend the pejorative name and legal results of "piracy" to this action of a
British subject which had been forbidden by municipal statute, to a naturalist
like Wooddeson, the use of the word was merely polemical when added to a
statutory charge that was not directly related to his conception of "piracy"
under the hovering principles of universal justice he included within his
conception of the law of nations. 165
Searching for other cases in which the form of the commission was not the
key to attaching the name and legal consequences of "piracy," Wooddeson
referred to Palachie's Case as recited by Coke in his Fourth Institute. 166
Wooddeson's conclusion is sweeping and undoubtedly correct, that in order
to be "piracy" in England, the taking must have been committed without
color of belligerent rights. Even in England itself, he point out, "[T]he law of
nations is . . . understood to tolerate at least the forfeiture and capture of
enemy's ships and goods in time of open hostilities, without the sanction of a
special [sic] commission." 167 A general proclamation would suffice, and,
indeed, what court to which "enemy" goods or ships were submitted for
prize proceedings would really refuse to support an English captor acting
pursuant to English policy and submitting his takings for proper distribution?
No such case has been found.
The implications of this position include a logical shift and coming together
of the relative jurisprudential positions of positivist and naturalist thinkers.
By regarding the requirement of a "commission" as simply a special English
municipal law provision interpreted strictly against English depredators
pursuing a "reprisal war" 168 but loosely in case of a general public war, and
not applying at all in English courts in cases of belligerency between foreign
powers alone, 169 the basic positivist scheme could be maintained. But the
sweeping assertions of Jenkins and other early positivists are revealed as far
too broad. On the other side, demanding that the English Common Law of
robbery and its requirement of animo furandi be applied before any taking,
commissioned or not, could be deemed "piracy" in the absence of statute
calling something else "piracy, " and regarding the English law in this phase as
a mere municipal law expression of underlying natural law principles,
undercut the search for a natural law of "piracy" and diminished the impact
of natural law principles of self-defense and property rights on the definition.
To the degree that English law was conceived as the embodiment of natural
law, the municipal law of England as expressed through the sort o{
authoritative pronouncements in statutes and cases familiar to positivist
jurists and statesmen made it possible to derive the supposed international law
Evolution In England 113
of "piracy" from English precedents and make it appear part of a universal
"law of nations" in the Zouche-Blackstone sense. The principles of
international law could then be regarded as not a limit on English law, but as
English law itself which all other countries were bound to follow because the
sources and logic of English law were universally valid even if English
jurisdiction was limited. Wooddeson's logic must have seemed very
persuasive to both natural law and positive law English jurists.
As to universal jurisdiction and legal interest, Wooddeson was cautious:
A charge of piracy may properly be exhibited in any country, to which either the party
accused, or the owner of the goods, belongs. But whether the law of nations will allow
the fact to be tried in a country where they are both aliens, and which therefore seems to
have nothing whereon to ground the reasonableness of its jurisdiction, is left undecided
by the judicious Bynkershoek [sic]. 170
He did support universal jurisdiction in principle on the ground that the seas
are within the territorial jurisdiction o{ all princes, and given the right
nationality of the vessels or persons involved, offenses on the high seas could
certainly be tried in any port under tribunals deriving their competence from
municipal law. But that logic seems to miss the point by confusing various
kinds of jurisdiction. The Dutch Admiral might have jurisdiction equal to that
of the British Admiral on the high seas, but his prescriptions with regard to
events wholly within a British ship in those seas would have been hotly
rejected by a British court; and Dutch intermeddling in a legal dispute
between Great Britain and France would have been resented even (especially)
if the action giving rise to the dispute occurred entirely on the high seas
(however defined). In sum, the reference to territoriality as the basis for
universal jurisdiction does not reach the true issue, which is legal interest in
the case.
The wider assertions of British legal interest, amounting in a sense to
assertions of British jurisdiction to rule all the seas to the exclusion of
inconsistent foreign law even on board foreign vessels, grew in the nineteenth
century and found their limits. But before analyzing those assertions and their
limits, it is important to understand the other great stream of jurisprudential
thought and practical action growing out of English writings and precedents;
the law and policy regarding "piracy" of the newly independent United
States of America.
Notes
1. William Wynne, The Life of Sir Leoline Jenkins . . . (1724), Vol. I, pp. xii-xiii, xl; 10 DNB 739-742.
2. Wynne, op. tit., Vol. II, p. 791.
3. Cornelisz Bynkershoek, Questionum Juris Publici (1737), Book I, ch. XVII (Tenney Frank, transl.)
(CECIL 1930), Vol. II, p. 99. See text at notes 139-151 below. The passage in Gentili's works that
Bynkershoek cites is the first of the Spanish Advocate's Pleadings analyzed in the text at note 1-105 above.
There is no mention of Gentili's altered views.
4. William Oldys (spelled Oldish in the Report in 12 Howell's State Trials 1269) is described as "an eminent
civil lawyer" in 14 DNB 1013. Despite the outcome of the discussion to be retold below, in which Dr.
114 The Law of Piracy
Oldys was himself nearly accused of treason by some members of the Cabinet Council, and was removed
from the list of Advocates of the Admiralty, he survived well, and had enough reputation to run
(unsuccessfully) for Parliament as a member for Oxford University in 1705. He died aged 72 in 1708. Id.
5. The civil lawyers, i.e., lawyers expert in Admiralty, Ecclesiastical and Roman law, were regarded
as expert also in international law. The most learned, all with Doctoral degrees (D.C.L. from Oxford or
LL.D. from Cambridge) organized themselves in what was called "Doctors' Commons" and were
frequently consulted by the Crown on questions of international law. See 3 McNair, International Law
Opinions (1956) 408-420.
6. Tindall's (spelled Tindal in 19 DNB 883; his biography is at pp. 883-885) career was interesting. He
turned Catholic during the reign of James II and abandoned that religion for the Church of England at
about the time James was deposed and Catholicism became unpolitic again. He was only 36 years old at the
time of this incident in 1693. Oldys was near 60.
7. 2 Marsden, Documents . . . 146-148. Tindall's opinion is listed with the majority although in substance
he certainly dissented. Is it possible that he falsified this entry after the opinion was formally presented?
8. Secretary of State and member of the Privy Council. Trenchard was a very active politician who had
had to flee the country in 1685 when his involvement in the Monmouth revolt against Charles II was
discovered. A devout Protestant, he was bitterly opposed to King James and his supporters. 19 DNB
1123-1125.
9. See note 4 above.
10. It has been impossible with reasonable effort to identify these civil lawyers.
11. 12 How. St. Tr. 1269-1275. The actual proceedings in the trial are not provided. The eight Irish
"pirates" were named John Golding, Thomas Jones, John Ryan, Darby Collings, Richard Shivers, Patrick
Quidley, John Slaughter and Constantine de Hartley.
12. An original copy of Tindall's Essay has not been found. This version, cited to pp. 25-30 of the Essay,
appears in 12 How. St. Tr. 1271-1274 as a very long footnote. The quoted passage is in col. 1272. The same
excerpt is printed (with some minor editorial differences) in 2 Marsden, Documents 142-146.
13. 12 How. St. Tr. 1271.
14. 28 Hen. VIII c. 15 (1536), reproduced in Appendix I. A below.
15. It is interesting that Coke's analysis and Hale's adoption of it as recorded in the 1685 edition current in
the 1690s was not mentioned in this discussion. See Coke, Third Institute 113; 1 Hale Pleas of the Crown (1685 ed.)
23, 77-78. Presumably the reason was that the civilians were focusing on "piracy" as a question of the legal
power of foreign sovereigns to issue privateering licenses, and whether a contender for the English crown
could be considered a foreign sovereign in England when acting as if he were the sovereign of England in
disregard of the constitution under which his acts were being measured. That is an interesting legal question,
but did not involve the English municipal law of treason directly; indeed, Charles I having been beheaded for
"high treason" in 1649 under a definition that supposed him to be levying war against the kingdom, the jurists
of 1693 did not want to raise the question again. The Lords and Common Law people involved presumably did
not want to be reminded that Coke defined "piracy" as a species of "petty," not "high," treason, and thus the
entire category would seem to have been irrelevant to criminal charges brought against those whose real
offense was felt to be "high treason." See text at notes 19 sq. below.
16. This was, of course, the incident referred to by Gentili and discussed in Chapter I at note 1-100 above.
The same passage of Gentili is cited by Tindall.
17. 12 How. St. Tr. 1273-1274.
18. Id., col. 1274.
19. 25 Edw. Ill statute 5 c. 2 (1352), 2 Pickering, The Statutes at Large 50-52 (1762). See note 1-201 above.
20. 12 How. St. Tr. 1275-1279. The quoted passage is in col. 1278.
21. The appeals petition was rejected by the House of Lords and of the defendants, "some of them, if not
all, were executed." Id., col. 1280. Some clue as to the emotional issues at play in that rejection might be
seen in Tindall's Essay, which concludes by comparing Kingjames's claim to continued political authority
to "the charms, or indelible characters, the Papists say, are inseparable from the persons of their priests,"
saying such a persistence of powers, "whatever it be in ecclesiasticals, is no small bigotry and fanaticism in
civil affairs. And it is the height of folly, madness, and superstition, to believe that the people, who have
entrusted some one amongst them with power for no other end but for protecting them, can, upon no
account whatsoever, resume it. "Id., col. 1274. It might be suggested, however, that to treat the struggle as
ended in fact with the Parliament victorious was premature in 1693.
22. See note 1-201 above.
23. Coke, Third Institute 111.
24. 5 Pickering, op. cit. 199 (1763):
Foreasmuch as some doubts . . . have been moved, That certain kinds of treasons . . .
committed out of the King's majesty's realm of England, and other his Grace's dominions,
cannot ne may be [sic; by?] the common laws of this realm be enquired of, heard and
Evolution in England 115
determined within this said realm of England . . . [ Enact] That all manner of offences, being
already made and declared . . . treasons . . . and done perpetrated or committed ... by any
person or persons out of this realm of England, shall be from henceforth enquired of, heard
and determined before the King's justices of his bench ... or else before such
commissioners, and in such shire of the realm, as shall be assigned by the King's majesty's
commission, ... in like manner and form to all intents and purposes, as if such treasons . . .
had been done . . . within the same shire . . . Provided . . . that if any of the peers of this realm
shall be indicted of any such treasons . . . [they shall have] trial by their peers ... as hath
heretofore been accustomed.
25. Coke, Third Institute 113.
26. The text of the pertinent part of Coke's short analysis is in note 1-201 above.
27. 7 Will. Ill c. 3 (1695) 9 Pickering, op. cit. 389 sq. (1764). The "Act for regulating of trials in cases of
treason and misprision of treason" takes the odd form of setting forth the requirement of two witnesses to
the overt act unless the defendant confess or refuse to plead, and provides for jury trials (and trial of peers
before the House of Lords) in capital cases. The trials were still held by royal commissioners as judges and it
is difficult to understand how the new procedures differ from the ones established in 1535 and repeated in
1536 for "treasons" along with "robbery and felony" cases, except that the jurisdiction of the new
"treason" commissioners was not restricted by statute to the traditional Admiralty jurisdiction. The aim of
the new statute seems to have been less to catch James's (and Louis XIV's) licensed privateers acting at sea,
than to catch Englishmen (and Irishmen) adhering to James in France.
28. 13 How. St. Tr. 485. Among the many points argued in the case was the question of the tribunal's
jurisdiction to hear a treason indictment. The discussion was short but illustrates the technical problems:
Mr. Phipps [Vaughan's defense attorney]. Then next I am in your lordship's judgment,
whether the statute of 28 of Hen. 8, by which captain Vaughan is tried, is in force, and be not
repealed by the 1st and 2nd of Philip and Mary, which saith, that all trials, in cases of
treason, shall be at the common law. Now, by the common law, before the statute of 28
Hen. 8, treason done upon the sea was tried before the admiral, or his lieutenant; and my
lord Coke, in the 12 Rep. in the case of the admiralty, saith, the jurisdiction of the admiralty
is by the common law. By the statute 33 [sic; 32? 35?] Hen. 8, c. 4, treason committed in
Wales, might be tried in what county the king would assign; but since the statute of Philip
and Mary, it must be in the proper county; so that we are in your lordship's judgment,
whether the statute of 28 Hen. 8 be in force; and whether, since the statute of 1 and 2 Philip
and Mary, treasons done upon the sea, ought not to be tried before the admirals or anciently
at the common law [instead of before a special tribunal appointed by the crown to replace
admiralty courts in some cases only].
L.C.J. [Lord Chief Justice Sir John Holt of King's Bench, President of the tribunal]. This is
treason by the common law, and the trial is by the method of the common law.
Mr. Phipps. It is true that my lord Coke, and other authorities say, that the statute 35 Hen. 8,
for trying treasons committed beyond sea, is not repealed by the statute of 1 and 2 Philip and
Mary; but they do not say that this [part of ? the] statute is not repealed by the statute of
Philip and Mary; and the books being silent in this, is the reason why I propose this question
for your lordships' judgment.
L.C.J. It is no more a question than the trials of foreign treason, and then the determination
of the trials upon the 35th [Hen. 8?] determines the question upon this.
That is the complete discussion related to the point. Id., cols. 533-534. The statute of 1 & 2 Philip and Mary is
apparently 1 & 2 Philip and Mary c. 10 (1554) (6 Pickering, op. cit. 53 (1763)), sec. VII of which provides that
"all trials . . . for any treason, shall be had and used, only according to the due order and course of the
common laws of this realm ..." (p. 54). Other statutes pertinent to the evolution of the procedures for
handling "treason" in England, such as 32 Hen. VIII c. 4, and 33 Hen. VIII c. 20, 23, seem too far removed
from this study for further discussion. The statute cited by Phipps, 33 Hen. VIII c. 4, is hopelessly
irrelevant. It deals with the repair of decayed houses in England and Wales. The statute dealing with
treasons committed beyond the sea is 35 Hen. VIII c. 2 (1545).
29. See note 1-201 above, reference to the "Normans, who had revolted in the reign of king John," Coke,
Third Institute 113.
30. 13 How. St. Tr. 503.
31. Id. passim, esp. cols. 495-499, 534-535. Dr. Oldys played a prominent part in pressing the civilian
viewpoint.
116 The Law of Piracy
32. 11 & 12 Will. Ill C. 7 sec. viii (1698-1699); dated to 1700 in 10 Pickering, op. at. 320 (1784) and
normally referred to that latter year. It is indexed in the official Chronological Table oj Statutes as 11 Will. Ill c.
7 (1698). Reproduced in Appendix I.B below.
33. See, e.g., The Journey of Wen-Amon to Phoenicia (c. 1100 B.C.?) in 1 Pritchard, The Ancient Near
Hast (1958) 16-24.
34. See text at notes 1-170 sq. above.
35. See text at note 1-192 above, Proclamation of 1599.
36. Lord Admiral Charles the Earl of Notingham to Sir Julius Caesar, 1 Marsden, Documents 320-321.
37. Id. 522 at 523.
38. See, for example, the Proclamations of 23 June 1603 by James I declaring
[T]hat all such our men of warre as now-be at sea, having no sufficient commission . . ., and
have taken . . . any ships or goods of any subject of any prince in league and amitie with us,
shall be reputed and taken as pirates, and . . . shall suffer death . . . according to the ancient
lawes of this realme.
1 Marsden, Documents 342 at 343. The object of this Proclamation was to enforce the new peace with Spain.
There is no known ancient English law or "piracy" to justify the last sentence of the Proclamation, and the
use of the word seems consistent with James's flinging it about to everybody not obeying his orders. See
text above at notes 1-85 and 86.
39. See below.
40. See text at note 109 below.
41. See below.
42. See, e.g., the French letter of marque of 1693 authorizing a privateer not only to capture English and
Dutch ships, but also to "courirsus [sic] aux Pirates, Corsaires, et gens sans aveu." 2 Marsden, Documents 140.
Presumably Captains Golding, Jones and Vaughan had commissions in this form. See text above at notes 20
and 28 sq. On the evolution of privateering from a private act to avoid belligerency to a belligerent right of
a sovereign, see note 1-176 and works cited there.
43. 2 Marsden, Documents 427-428.
44. This trace of a natural law license to take necessities from the rich comes not from natural law or
from Jenkins, but is merely Jenkins's paraphrase of the provision of 27 Hen. VIII c.4 and 28 Hen. VIII c.15
sec. iv. See also Molloy, De Jure Maritimo, Book I, ch. IV, para. xviii(2) at p. 41.
45. Charge to a Grand Jury at Admiralty Session in Southwark, 18 February 1680, 167 Eng. Rep. 561.
This charge does not appear to have been among those collected by Wynne, op. cit. note 1.
46. As to the availability of insurance at this time for "all events and for all disasters," see Defoe, Moll
Flanders (1722) (Signet ed. 1964) 280. Defoe pretended that the book was a first-person account by a whore
written in 1683. It has frequently been asserted that the tale was intended in the usual form of the time as a
satire on the emerging merchant classes in England and North America.
47. 1 McNair, Law Officers' Opinions 266-267.
48. See text at notes 1-143 sq. above.
49. Once again, it is not proposed to follow this interesting side-trail; to trace the history of the concept
of "piracy" is enough for one book without also attempting the history of "robbery." The phrase "animo
furandi" appears as an essential element of the Common Law crime of "larceny, "of which "robbery" is an
aggravation according to 1 Hale, Pleas of the Crown 61, 71. Curiously, the phrase does not appear in Hale's
direct discussion of either "robbery" or "piracy." Its first known technical use in English law was
ironically in Bracton's (c. 1250) Latin treatise in which the English Common Law crime of "theft" is
translated with the Latin word "latrocinium" which in turn was later translated back into English as
"larceny" — thus, it seems, contributing to the confusion between "pirata" and "latrones" by indirectly over
a period of some 400 years finding the former to be at English law a mere sub-category of the latter.
Bracton did not mention "pirata" while recording in the reign of Henry III with regard to "lactrocinium"
"sine animo fur andi non committitur [without the intention of stealing it is not committed]." 2 Pollock &
Maitland, History of English Law 494, 499. The Latin word "furandi," translated "of stealing" above, itself
contains a complex idea of illegality and taking which it is impossible to analyze further in this place. The
word "ammo" in Latin is in the ablative case and means "with intent." The dative is the same, "animo.
The nominative singular is "animus" and the accusative is "animum."
50. See text at note 1-156 above.
51. See note 1-61 above.
52. See notes 1-49 and 1-50 above.
53. The analogy between Vikings and classical "pirata" was drawn no later than 1387. See text at note
1-64 above.
54. See text at notes 1-93 sq. above.
55. See colloquy in text at note 7 above.
Evolution in England 117
56. The most common is Rex v. Dawson and others (1696), 13 How. St. Tr. 451. It is cited in East, A
Treatise of the Pleas of the Crown (1804), as Rex v. May, Bishop and others. The defendants were Joseph
Dawson, Edward Forseith, William May, William Bishop, James Lewis and John Sparkes.
57. See text at notes 28 sq. above.
58. 13 How. St. Tr. 453, 457, 529 sq.
59. The issue was one of double jeopardy, of course. The report is less than satisfactory on this point; the
places and names of the principal victims of the defendants' depredations, and the witnesses for the
prosecution, seem very similar in the two trials insofar as reported.
60. 13 How. St. Tr. 454-455.
61. 28 Hen. VIII c. 15. The text is set out in Appendix I. A.
62. Molloy, op. cit., Book I, ch. IV, para, vii at p. 37.
63. Id., para, viii: "And so it is, if the Subject of any other Nation or Kingdome, being in Amity with the
King of England, commit Piracy on the Ships or Goods of the English ..."
64. Id., para, xiv at p. 39:
"If a Spaniard robs a French Man on the High Sea, both their Princes being then in Amity, and
they likewise with the King of England, and the Ship is brought into the Ports of the King of
England, the French Man may proceed criminaliter against the Spaniard to punish him, and civiliter
to have Restitution of his Vessel: but if the Vessel is carried intra Praesidia of that Prince, by
whose subject the same was taken, there can be no proceeding civiliter, and doubted if
criminaliter, but the French Man must resort into the Captor or Pirats own Contrey, or where
he carried the Ship, and there proceed."
65. Id., para, x, p. 38.
66. Letter from Sir Leoline Jenkins to Admiral Sir Thomas Allen dated 8 October (1674?), 2 Wynne, op.
cit. 699-700.
67. This basis for "normal" jurisdiction appears to have dropped out of the customary international law
regarding the extent of national jurisdiction, or at least become doubtful, by the 20th century. See The
Lotus Case, Permanent Court of International Justice (P.C.I.J.), Ser. A, No. 10 (1927), and the "voluminous
literature inspired by this case," 2 Hudson, World Court Reports 20. This is not the place to pursue this
interesting subject further.
68. Molloy, op. cit., para, xi, p. 38.
69. Id., para. xii.
70. 1 Wynne, op. cit., lxxxv-lxxxvi, Charge given to an Admiralty Session within the Cinque Ports, 2
September 1668.
71. The precise date is unclear; Wynne does not give it. Since the title "Sir" is used, and Wynne does not
use the title with regard to Jenkins's writings before 1669, when Sir Leoline was knighted, and Jenkins left
the Admiralty bench in 1674, some time between 1669 and 1674 is indicated.
72. Id., pp. xc-xci, Charge given to an Admiralty Session held at the Old Bailey.
73. Williamson's biography is capsulized in 21 DNB 473-478.
74. 2 Wynne, op. cit. 713 at 714.
75. Id.
76. Id.
77. Which treaty is not specified by Jenkins. It appears to be the Treaty of Breda, 21/31 July 1667, 10
CTS 255. Jenkins refers to an Article 35, which seems to bear some relationship to Article 35 of a Treaty
between France and the Netherlands which was made applicable also to England by Article III of the
Treaty of Breda. 10 CTS 278, 281.
78. 2 Wynne, op. cit. 714-715.
79. Article XX of the Treaty of Peace and Alliance between Great Britain and the Netherlands, Breda,
21/31 July 1667, 10 CTS 231, specifically provides for the "condign punishment" of "Pirates and Sea
Rovers" regardless of nationality. Interestingly, the reproduction in the CTS omits the English translation
of the Latin text of this (and several other) articles. The Englist text quoted here is from an unattributed
volume, Extracts from the Several Treaties Subsisting Between Great Britain and Other Kingdoms and States . . . (1741)
132, apparently a shipboard reference work for English naval commanders. Obviously, the compilers of
this work believed the Treaty of Breda's provisions regarding the punishment of "pirates" were continuing in
force. In the original Latin, the phrase "Pirates and Sea Rovers" is li Piratae et Praedones," 10 CTS 242.
80. Cited at note 56 above.
81. Text at note 72 above.
82. 13 How. St. Tr. 455.
83. Id. 457.
84. Id. 483.
85. \4How. St. Tr. 1199.
86. 6 Anne c. 40 (1707); Scottish Act 5 Anne c. 7 (1706).
118 The Law of Piracy
87. 14 How. St. Tr. 1238.
88. Id. 1311-1312.
89. Id. 1224.
90. The roots of this conception and its incorporation into English law through the adoption of the
maritime Laws of Oleron are mentioned in the text at note 1-150 above.
91 . The Trial of Captain William Kidd, at the Old-Bailey, for Murder and Piracy upon the High Seas;
and of Nicholas Churchill, James Howe, Robert Lamley, William Jenkins, Gabriel Loff, Hugh Parrot,
Richard Barlicorn, Abel Owens, and Darby Mullins, for Piracy, May 3 and 9, 1701 , in 14 How. St. Tr. 123.
92. Id., cols. 123-125 note, summarizing the Journal of the House of Commons 16 March, 1700 - 16
April, 1701 in which there appear many actions and resolutions relating to the accusations against Captain
Kidd and the role of the Earl of Bellamont in confiscating Kidd's papers and sending only a selection of
them to England with the ship bearing Kidd and his accused crewmembers. Kidd appears to have tried to
bring Lord Bellamont to court in England alleging irregularities in his actions as Governor of New York
(not "New England"). The Crown intervened to defend Bellamont and the cause never was heard. 2 Salk.
625. The removal of the case appears to have become a precedent on a technical aspect of English
administrative law. 2(ii) Anson, The Law and Custom of the Constitution (4th ed., by A.B. Keith 1935) 334.
Bellamont's name is misspelled in note 1 on that page and in Anson/Keith's table of cases; the correct
spelling appears in Salkeld's Reports.
93. 14 How. St. Tr. 171-173.
94. Id., cols. 169-170. This entire commission is as interesting and as tightly drafted as the previous one,
but relating to privateering in time of war rather than to piracy, its technical language is not directly
pertinent to this study.
95. Id. 146. There is some inconsistency in the report, which also mentions that verdict being brought in
during the second trial (for piracy) the next day. Id. 153.
96. Id. 147. The exact location is obscure. There is a Cochin port in the Malabar coast of India, and a
Cochin district in what is now Vietnam, but no Cochin (or Cutsheen) is known in the islands now part of
Indonesia or the East Indies as normally intended about 1700. Cochin in India was apparently intended. The
Quedagh Merchant is described later in the proceedings as "a Moorish ship," and the merchants on board as
"Armenians. " Id. 155. The capture is dated to February 1697 in that place. Indeed, there seem to be several
inconsistencies between the charge and the actual facts as uncovered during the trial, but apparently those
discrepancies were not considered significant by the court and the defendants did not make much of them.
For good or ill, the trial procedures in England at that time were considerably more favorable to the
prosecution than in the United States today.
97. The text is given at id. 149-150.
98. Id. 150. Every (Bridgman) was mentioned prominently in the Dawson case also, cited note 56
above, but was never captured.
99. Id. 158.
100. Id. 169.
101. Id. 180. It is not proposed to cite all places in the transcript of the trial in which these points were
made; the transcript makes exciting reading but, like most trial records, is repetitive and must be read in its
entirety to understand all the points of dispute and their relative importance to the trial. This study is
focused on the legal definition of "piracy" alone.
102. Id., 183-184.
103. Id., 185.
104. Id., 185-186.
105. Id., 186-187.
106. Id., 234. George Bullen does not appear in the proceeding.
107. Kidd asked to have Dr. Oldys, the Civil Law expert, appointed one of his defense counsel for the
murder trial, and, after some procedural argument on another point (whether he had to plead before
counsel would be permitted to address the court), that was done. Id. 127. Oldys appeared actively arguing
for Kidd during the trial. Id. 132 (arguing that it the ships he took had French passes "there was just cause of
seizure and it will excuse him from piracy"), 133 (concerning a procedural point regarding notice of the
charge and that money to obtain witnesses should have been permitted Kidd), etc.
108. 2 Marsden, Documents 48-49.
109. Id., 82.
110. If it were shown to have been an enemy vessel, it is hard to see that any legal proceedings would be
brought before an English tribunal since there would have been no loss to provoke even a private
restitution claim by an English or neutral skipper. If it were shown to have been a neutral or English vessel,
the lack of commission would likely have seemed damning in an English tribunal, while the possessor of a
commission might well have been able to argue mistake, in those days of false flags.
111. Text at note 104 above.
112. See text at note 1-156 above.
Evolution In England 119
113. Text at notes 1-182 sq. above.
114. Text following note 1-187 above.
115. See above at note 1-190.
116. See note 1-191 above.
117. The incident of Sir Francis Drake's submitting his unauthorized prize to Queen Elizabeth is well
known. The conventional wisdom that Drake sailed without a commission to take Spanish and Portuguese
prizes, but bought the Queen's retroactive consent by submitting his spoils to her personal disposal, may
reflect court gossip more than fact at least with regard to Drake's raid on Nombre de Dios and his round the
world expedition. There are traces of secret permissions uttered by the avaricious Elizabeth although an
open commission would have risked an unwanted war with Spain. See Nuttall, ed., New Light on Drake
(Hakluyt Society, 2nd Ser., Vol. 34) (1914) 54-56 (Sir Francis's cousin John's account of Sir Francis's
reception by Queen Elizabeth in 1573; John's account was delivered under questioning by the Spanish
Inquisition in Lima, Peru, in 1587 regarding the Nombre de Dios raid); 429-430 (letter of 22 October 1580
from Elizabeth to her treasury official, Edmund Tremaine, to grant Drake 10,000 pounds out of his own
spoils just brought in, but adjuring him to strictest secrecy). Cf. Wagner, Sir Francis Drake's Voyage Around
the World (1926) 25-26 (summarizing the probabilities); 445-446 (copy of the commission from Elizabeth to
Captain Edward Fenton dated 2 April 1582 indicating the usual form, authorizing the captain to administer
justice on board his ships, but silent as to captures or the administration of justice to pirates or any
foreigners). In 1593 Lord Howard, the Lord High Admiral, wrote to Sir Julius Caesar of a Spanish ship
taken to Plymouth by one of Drake's captains, "to let you know the premises, and to require you that the
want of a commissione maybe noe let unto the same." 1 Marsden, Documents 281-282.
118. Cited note 32 above; text reproduced in Appendix LB.
119. Id., sec. 7.
120. Id., sec. 8.
121. "Barratry" is not mentioned as such in the statute. It would have been included as "petty treason"
or "felony" as a breach of: trust. See notes 1-134, 1-165 above.
122. Cited note 86 above.
123. E.g., 4 Geo. I c. 11 (1717), ending the "benefit of clergy "for "pirates" ("benefit of clergy" refers to
special procedures to remove the clergy (at times, any literate person) from the jurisdiction of the normal
Common Law courts); 8 Geo. I c. 24 (1721) making it a crime to "consort" with pirates; 18 Geo. II c. 30
(1744) minor amendments to the Act of 1700; 46 Geo. Ill c. 54 (1806) allowing Commissions under the Act
of 1536 to be held in any overseas British colonies; 7 Geo. IV c. 38 (1826) refining the Act of 1806; 7 Will. IV
& 1 Vic. c. 88 (1837) making a technical adjustment to clarify a doubt about whether attempted murder was
capital by making it so when accompanied by "piracy."
124. 6 Geo. IV c. 49 (1825). See chapter IV. B. 2 below. The Act is reproduced in Appendix I.C below.
125. 14 How. St. Tr. 1067.
126. See Appendix LA below. The relevant passage is quoted in the text at note 1-164 above.
127. 14 How. St. Tr. 1073. Of course, "pirates" were not called by the Romans "hostis humani generis." See
note 1-201 above. As to oaths given to pirates, see notes 1-49, 50 and 51 above and the text that follows them.
In fact, in relations with "pirata" in classical times the law of arms was followed. See generally text at notes
1-22 sq.
128. Text quoted at note 93 above.
129. The "Mayflower Compact" of 1620 can be seen as an application of this "social contract" theory in
practice, although the most eloquent statement of social contract theory that has survived, Hobbes,
Leviathan (1651), was not published until some thirty years later.
130. 14 How. St. Tr. 1084-1087.
131. It is not known what incidents are referred to. Presumably some form of popular nonsense was
being alleged without basis in fact or literature.
132. 14 How. St. Tr. 1089.
133. Id. 1090-1095.
134. Zouche, Iuris et Iudicii Fecialis (1650) Q.L. Brierly transl.) (CECIL 1911) Part I, sec. i, p. 1.
135. It has become conventional wisdom that Jeremy Bentham first made this distinction in English. See
Woolsey, Introduction to the Study of International Law (1860, 3d ed. 1871) sec. 9 at p. 26-27). As Woolsey points
out, the conceptual distinction between the jus gentium, the common law of all countries, and the jus inter
gentes, the law between nations, was well known at Roman law and Bentham 's contribution, if any, was
merely to introduce the phrase "international law" as a label for the second concept. In fact, Bentham does not
focus on this distinction at all in the works in which the phrase "international law" was first used. 2 Bentham,
The Works of Jeremy Bentham (John Bowring, ed.) (1838-1842, 1962) 535. The first of the four essays in which the
phrase appears was written in 1786 and the last in 1789, but none of them was printed until Bowring's edition of
the complete works a generation later. Id. 536. Nussbaum refers the phrase to a slightly later work of
Bentham, the Introduction to the Principles of Morals and Legislation (1789) (Nussbaum, A Concise History of the Law of
Nations (Rev'd ed. 1954) 136), and calls it "one of his [Bentham 's] happiest linguistic innovations. " Id. If so, it is
120 The Law of Piracy
hard to see why Nussbaum himself titled his great History as he did. Bentham himself seems to have
oversimplified the jurisprudential relationship between, on the one side, rules of conflict of laws and the
common municipal law of all states (today considered a branch of public international law only in certain
narrow contexts, like the municipally enforced laws of war, prize law and some parts of Admiralty; see the
Zatnora [1916] A.C. 77, opinion by Lord Parker of Waddington), and, on the other side, the law between states:
Now as to any transactions which may take place between individuals who are subjects of
different states, these are regulated by the internal laws, and decided upon by the internal
tribunals, of the one or the other of those states: the case is the same where the sovereign of the
one has any immediate transactions with a private member of the other: the sovereign
reducing himself, pro renata [fig., for that purpose], to the condition of a private person, as often
as he submits his cause to either tribunal; whether by claiming a benefit, or defending himself
against a burthen. There remain then the mutual transactions between sovereigns, as such, for
the subject of that branch of jurisprudence which may be properly and exclusively termed
international* [1. The word international, it must be acknowledged, is a new one; though, it is
hoped, sufficiently analogous and intelligible. It is calculated to express, in a more significant
way, the branch of law which goes commonly under the name of the law of nations: an
appellation so uncharacteristic, that, were it not for the force of custom, it would seem rather
to refer to internal jurisprudence . . .].
Bentham, Introduction to the Principles of Morals and Legislation (1789) (printed with A Fragment on Government,
Wilfrid Harrison, ed., 1948) 426. Bentham 's rather glib dismissal of the legal obstacles that the theory of
sovereign immunity places in the way of private suits against foreign sovereigns seems not to be based on any
logic or historical precedent of his time.
136. Pufendorf, Elementorumjurisprudentiae Universalis (1660) (ed. of 1672) (W. A. Old Father, transl.) (CECIL
1931), Definition XIII sec. 24. Compare with Rachel, De Jure Naturae et Gentium Dissertationes (1676) (J. P. Bate,
transl.) (CECIL 1916), Dissertation Second, sec. Ill:
"For if there be any Law observed among many peoples, but no obligation springing
therefrom obtains among them so that by its bond they are constrained into a Society and kept
therein, that is not Law of Nations at all and ought not to be so called, but it is a Civil Law
common to many peoples and belonging to them as individual peoples. Now Grotius saw this
rightly and pointed it out; but here and there he falls in with the common but quite unjustified
usage and calls that Law the Civil Law of many peoples, or a kind of Law of Nations."
Rachel, positivist in his main lines of thought, considered it "quite wrong to confuse the Law of Nations with
the Law of Nature." Id., sec. IV.
137. Cf. Grotius, De lure Praedae Commentarius (1604) (Williams & Zeydel, transl.) (CECIL 1950), passages
referred to in note 1-126 above; Wolff, Jus Gentium Methodo Scientifica Pertractatus (1747, 1764) (Joseph H. Drake,
transl), (CECIL 1934), sees. 200-201; Vattel, Le Droit des Gens (1758) (Charles G. Fenwick, transl.) (CECIL
1916), Book II, ch. ii, sees. 23-24. It is noteworthy that Vattel does not address "piracy" directly. Privateers
without commission he wrote could be treated on capture as "robbers or brigands [des voleurs ou des brigands]"
while those with commissions were properly considered "prisoners captured in regular warfare [prisonniers,
faits dans une Guerre en forme]." Id. Book III, ch. xv, sec. 226, Vol. II p. 199; Vol. Ill, p. 318. His discussion of
privateering (id. sec. 229) addresses only those who abused their licenses for personal gain instead of justice, as
unable "to remove the stain of infamy [ne peut lava leur infamie]," but he does not call them "pirates" or
brigands. He does not address the infamy of those who pursue the same ends without commissions.
138. Wolff dealt with the problem of an expanded knowledge of political societies outside of Europe, and
the apprehension that not all men found the interference with peaceful commerce to be unreasonable, by
hypothesizing the entire "society of men united for the purpose of promoting the common good by their
combined powers" as a "supreme state" governed by its own unwritten constitution. Wolff, op. cit.,
Prologomena sees. 9-11. He considered indivduals as bound equally with states to the whole system. Id., sec.
12. But he excluded from the supreme state nations which, without naming any, he called "barbarous and
uncultivated. " Id. sees. 52-53, 168-169. This approach raises many theoretical problems, particularly when it is
remembered that Wolff expressly notes that all nations are imperfect, and that there is no right of war against
a "barbarous" state merely on account of its barbarity (id. sec. 169) — thus implying that there is yet another,
even more "supreme," state linking the "supreme state" of civilized nations to barbarous states in a single
system. But this is not the place to analyze Wolffs full thought.
139. Bynkershoek, op. cit. note 3 above.
140. Id., text at note 3 above.
141. Id., 98 (English translation); Vol. I, p. 122: " piratarum praedonumque vocabulo intelligentur."
142. Id., Vol. II, p. 98 (English translation); Vol. I, p. 122: "Unde, utpiratae, puniuntur, quiadhostem depraedandum
enavigant sine mandato Praefecti maris ..."
143. Id.
Evolution in England 121
144. Id.
145. Id., Vol. II, p. 99, citing Dutch (and pre-independence Habsburg) laws of 1570 (insurance), 1580
(herring-fishers) and 1696 (French privateers too close to Dutch territory). The Dutch word used in these
statutes was not "piracy" but " 'zeerovery." Id., Vol. I, p. 126.
146. See text at notes 17 sq. above. William III of England was, of course, William, Prince of Orange,
the Stadhouder of the Netherlands. The line of succession in England diverged from that of the Netherlands
after his death, England having invited him to rule only because he was the Protestant husband of James's
daughter Mary. Under this arrangement, William ruled England alone as William III after Mary's death in
1694, but was succeeded by Anne, Mary's younger sister, who died without surviving children in 1714.
George I of Hanover succeeded Anne in that year as the nearest relative of the Stuart line (he was a
great-grandson of James I).
147. Bynkershoek, op. cit., Vol. II, pp. 101-102. It is not clear whether this negotiation is the same as that
retailed in the text at notes 73 sq., in which Sir Leoline Jenkins took the view in 1675 that the Treaty of 1667
had a different meaning than that stated here by Bynkershoek.
148. See argument in text at notes 85 sq. above.
149. Bynkershoek, op. at., Vol. II, p. 102. The treaty is in 7 CTS 141. Article XVII (pp. 146-147) comes
closest to what Bynkershoek says, but I have found no provision that says it clearly.
150. Bynkershoek, op. cit., Vol. II, pp. 102-103.
151. See note 1-176 above.
152. Blackstone, Commentaries on the Laws of England, was published in four volumes, Only the fourth is
pertinent to this study; it was published in 1769. The identical text is used in the edition published in
Worcester, Massachusetts, in 1790, which is the one from which these excerpts are taken as more likely to
have influenced American judges in the early 19th century, particularly Justice Story. See chapter III
below.
153. 4 Blackstone, Commentaries (1769, 1790) 67.
154. See notes 1-61 and 1-201 above.
155. 4 Blackstone, op. cit. 71-72.
156. Coke, Fourth Institute (1644) passim.
157. All the excerpts below are taken from 2 Wooddeson, A Systematical View of the Laws of England
(1794), Lecture XXXIV, "Of Captures at Sea."
158. Id., 421.
159. Id., 422.
160. Such as whether an attempt at "piracy," the mere assault, not being "robbery" was properly
considered to be "piracy." Jenkins and Molloy each has passages relating to this, Jenkins asserting the
attempt to be enough, according to Wooddeson, Molloy taking the other position on the basis of statute
law in many jurisdictions. But Wooddeson's citation to Molloy (Molloy, op. cit. sec. 18) seems unrelated to
the point, and in another place (sec. 13) Molloy argues that an unsuccessful assault will still carry criminal
penalties — the distinctions being technical ones as to whether members of the crew are all principals or
only accessories in the crime. This does not seem a significant issue for present purposes. An exhaustive
analysis of the technical questions, treating the English treatises and cases as if determinative of
international law, is In re Piracy Jure Gentium [1934] A.C. 586. See note V-101 sq. below.
161. Wooddeson, op. cit. 423.
162. Id., 423-424.
163. On the shift of language from "law of nations" to "international law," see note 135 above.
164. Id., 426.
165. Id., note "n" at the foot of p. 426. Wooddeson records that Ryan was convicted but pardoned,
which seems to illustrate the point of jurisprudence: Convicted under positive law relating to commissions;
pardoned as a act of grace under natural law principles relating to moral fault.
166. See last sentence in note 1-196. Oddly, Wooddeson cites p. 152 instead of 154 of Coke's Fourth
Institute. There is language in p. 152 to support the citation, but not as direct as the language from p. 154
quoted in note 1-196 above, since under the recitation of the case by Coke in p. 152 it is noted that Palachie
in fact had a commission.
167. Wooddeson, op. cit. 432.
168. See classifications of Henry Marten, in the text at note 43 above.
169. This must have been so as a practical matter, since only the prince issuing a license could have the
legal power to interpret his own grant. That, of course, is the problem hinted at but not expressed very
clearly by Bynkershoek in discussing the practice of referring all belligerent captures back to the courts of
the licensing sovereign. See text at note 149 above.
170. Wooddeson, op. cit. ATI .
122
III
The United States of America and the
Law of Piracy
The Basic Framework
T he United States of America was governed by basic conceptions of
English law during the days of the formation of the Union, and the
leading drafters of the Articles of Confederation in 1777 and the Constitution
in 1787 were lawyers trained in English law.
Under the Articles of Confederation, each of the thirteen newly
independent states retained "every Power, Jurisdiction and right, which is
not by this confederation expressly delegated to the United States." 1 State
laws with regard to "treason, felony, or other high misdemeanor" were
preserved and extradition obligations accepted; there was no equivalent
extradition obligation among the states of the confederation with regard to
ordinary crimes. 2 This language seems to rest on an archaic definition of
"felony" and an evolving conception of the impact of the Statute of Treasons
of 1352 as it might apply to states not ruled by a king. 3 "Piracy" was not
included. Instead, "piracy" was treated as both a kind of public war and
special sort of common crime. While the states were forbidden to maintain
vessels of war in time of peace except as authorized by the representatives of
at least nine of the thirteen states in a formal meeting of the "Congress," 4 or
issue any "letters of marque or [sic; and?] reprisal" in the absence of a
declaration of war by the Congress, 5 an exception was made for the case
when any particular state should "be infested by pirates, in which case vessels
of war may be fitted out for that occasion, and kept so long as the danger shall
continue, or until the United states in Congress assembled, shall determine
otherwise." 6 The courts to deal with cases of alleged piracy, however, were
not to be courts of the states. The power was expressly given to the Congress
of all the states for:
Establishing rules for deciding in all cases, what captures on land or water shall be legal,
and in what manner prizes taken by land or naval forces in the service of the United
States [but not state militias or warships] shall be divided or appropriated — of granting
letters of marque and reprisal in times of peace — appointing courts for the trial of
piracies and felonies committed on the high seas and establishing courts for receiving
and determining finally appeals in all cases of captures. . . ?
United States Law 123
To the degree the provision authorizing states to commission their vessels
of war to defend them from infestations of "pirates" might be construed as a
derogation from the power of the Congress alone to determine on peace and
war, the power of the states was preserved, 8 but that derogation does not
seem to have been intended to affect the jurisdiction of maritime and prize
courts established by the Congress or authorize the states to establish
competing courts. 9 On the other hand, treating "piracy" as if a branch of
maritime warfare cannot have been intended to affect the residual powers of
the states to denominate as "piracy" whatever they chose within their
territorial jurisdiction, and establish courts to try alleged offenders under
state law. The congressional courts were authorized only to try "piracies and
felonies committed on the high seas," apparently intended to refer to areas
beyond the territorial jurisdiction of any particular state. There is no closer
definition of "piracy" in the Articles of Confederation and no known
significant practice.
The confusion between "piracy" as a sort of unlicensed belligerency and
"piracy" as a municipal law crime equivalent to robbery seems to have been
maintained, with both definitions existing side by side, and naval suppression
existing side by side with municipal tribunals. The distinctions were
presumably worked out in practice depending on where any particular
accused "pirate" was taken and by whom, and under what license the taker
operated.
James Madison's Reports on the Debates in the Federal Convention of 1787 10
records the discussion preceding the adoption of the Constitution. According
to that source, a "Committee of Detail "chaired by "Mr. Rutlidge"(s*'c) n on
6 August 1787 presented a working draft with the following provision:
[Art.] VII Sect. I. The Legislature of the United States shall have the power ... To
declare the law and punishment of piracies and felonies committed on the high seas, and
the punishment of counterfeiting the coin of the United States, and of offenses against
the law of nations. . . . 12
This clause is quite separate from the proposed clause authorizing the
legislature to "make war, "but appears immediately after a clause authorizing
the legislature "To make rules concerning captures on land and water." The
authority of the Supreme Court in the Rutledge Committee's draft was to
extend "to all cases arising under laws passed by the Legislature of the United
States" and also "to all cases of Admiralty and maritime jurisdiction," among
other things; the legislature was to be empowered to assign any part of this
jurisdiction to such inferior courts as it might establish. 13
The "piracy" clause was brought before the Convention on 17 August.
Madison moved to strike the words "and punishment" after "declare the
law." Two delegates expressed concern only over the effect of the deletion
on counterfeiting (apparently construing the suggestion to strike the phrase in
both places where it appears in the clause). One of them pointed out that
124 The Law of Piracy
without the phrase there might be no legal authority to punish counterfeiters
of foreign currency. Since the only reference in the provision to counter-
feiting is restricted to "the coin of the United States, " it seems that delegates
to the Convention and Madison in his notes were considering counterfeiting
foreign currency as an offense "against the law of nations." It is clear that
territorial limits on jurisdiction were a concern; that a foreign power would
have no jurisdiction to apply its law in the new federation, and if the federal
government did not have the express power to punish the counterfeiters of
foreign paper or coin some states of the union might become havens for
counterfeiters. The argument that seems to have carried the day merely
pointed out that in writing a constitution it was not necessary to be as
meticulous as in drafting a statute. Madison's motion was carried 7-3 with
three states abstaining.
Governeur Morris of Pennsylvania then moved to strike out "declare the
law" and insert "punish" before the word "piracies." That motion also
carried 7-3. Madison and Edmund Randolph 14 then moved to reinsert the
word "define" before "punish" arguing that the definition of "felony at
common law is vague" and in places "defective." There is no hint that
anybody conceived of "piracy" as a crime at international law, but only as a
felony at English Common Law. There was no doubt entertained by anybody
that the Congress of the United States could exercise a legal power to define
not only "piracy," but apparently to define "offences against the law of
nations." The Madison and Randolph amendment passed unanimously. 15
It is difficult to understand either the reference to "common law" or the
assumption that the United States, a single entity in the world, had the legal
power to define and punish offenses against the "law of nations" if those two
phrases are taken in any other context than that of Blackstone. If the "law of
nations" meant merely the national law of all states, there could be no
problem; but if it were intended to mean the law determined by treaty,
diplomatic correspondence and the practice of states in the international
order there are obvious technical legal difficulties in the language as adopted
on 17 August. The problem with the phrase "common law" is easier once it is
recalled that since 1536 in England "Common Law" procedures were used in
the trials of piracies and "felonies" within the jurisdiction of the Admiral.
The English constitutional struggle focusing on the traditions and political
subordination of the various courts in England at the time of Lord Coke and
the Stuart Kings, thus the technical distinctions between "Common Law"
and "Civil Law" as the law applied in Admiralty courts, had lost meaning. By
time of Blackstone, the phrase "Common Law" had acquired a normal
meaning referring to nonstatutory law applied throughout England, but not
necessarily the law applied only by specific courts.
The more important question, that of bringing the power of the Congress
to make law into harmony with the international legal order was raised again
United States Law 125
on 14 September 1787 by Governeur Morris moving to strike out "punish"
before the words "offences against the law of nations" so as to have the words
he had proposed successfully a month before simply carry their meaning on
through the entire clause. But James Wilson, also of Pennsylvania, 16 objected on
the ground that "To pretend to define [emphasis sic] the law of nations which
depended on the authority of all the civilized nations of the world, would have a
look of arrogance, that would make us ridiculous." 17 Morris replied that the
word "define" "is proper when applied to offences [emphasis sk]', the law of
nations being often too vague and deficient to be a rule. " The motion by Morris
passed very narrowly, 6-5, with Pennsylvania opposed: The word "punish" was
retained as applied to "Piracies and Felonies committed on the high Seas," but
was deleted from the text as applied to "Offences against the Law of Nations. " 18
The clause as adopted, and now contained in the Constitution is as follows:
The Congress shall have the Power . . . To define and punish Piracies and Felonies
committed on the high Seas, and Offences against the Law of Nations. 19
The authority of the Congress to provide for the punishment of counter-
feiting appears elsewhere, and applies only to counterfeiting the securities and
current coin of the United States; there appears to be no authority in the
Congress to make laws against counterfeiting foreign currency unless that is
considered an offense against the law of nations or part of the power of the
Congress elsewhere in the Constitution. 20
The power of the Congress to declare war, grant letters of marque and
reprisal, and make rules concerning captures on land and water appears in the
clause of the Constitution immediately following the clause relating to piracy
and offenses against the law of nations. There was no reference to piracy in the
discussion of that provision as recorded by Madison.
All cases of "admiralty and maritime jurisdiction" are reserved to the federal
courts, 21 and treason is defined as "only in levying War against [the United
States], or in adhering to their Enemies, giving them Aid and Comfort." 22
Further refinement of all these sweeping words was left to the Congress and the
courts.
Piracy as such was not discussed when the Convention passed unanimously
the provision that "all Treaties made under the authority of the United States
shall be the supreme law of the several states and of their citizens and
inhabitants; and the Judges in the several States shall be bound thereby in their
decisions." 23 The minor alterations that resulted in this language being
condensed to the form in which it appears in the Constitution were apparently
the work of the "Committee of Stile [sic, style] and Arrangement," which had
reported its proposed text on 12 September 1787. 24 There is no known record of
the deliberations of that Committee. The final language says: ". . . all treaties
made, or which shall be made, under the authority of the United States, shall be
the supreme law of the land; and the judges in every state shall be bound
thereby. . . . ,,2S
126 The Law of Piracy
From this brief summary, it is possible to conclude that the framers of the
American Constitution, insofar as they focused on the question at all,
conceived "piracy" to be something different from "offenses against the law
of nations," but rather falling into a like category with "felonies committed
on the high seas." Precisely what was left of the category "offenses against
the law of nations" seems very unclear; indeed, it appears to have been
considered unclear by most of the delegates at the Constitutional Convention.
To those who accepted the Blackstone conception of "piracy" being an
offense against the law of nations, but the "law of nations" being merely a
collective term for national laws that were similar in all civilized nations, like
the law merchant, there would have been no problem of analysis or
interpretation. To those like James Wilson whose conception of the "law of
nations" involved obligations owed by states in the international legal order
to their sister states, the power of the Congress to define any of its terms must
have seemed inconsistent with the power of the Executive to negotiate with
foreign governments and to send and receive diplomatic missions, since
diplomatic correspondence was necessarily conceived as part of the law-
making process of that "law of nations. " Wilson's analysis was rejected 6-5 in
the one instance in which the problem was discussed as far as surviving
records indicate. The law-making process of the law between states (to revert
to Zouche's term) was apparently conceived by the framers of the
Constitution to be confined to treaty, and there was no discussion of the
development of the law relating to "piracy" (or any "offenses against the law
of nations") in the discussion of the treaty-making power or the binding force
within the Union of treaties made under the Constitution.
This analysis is more or less borne out by Federalist No. 42 (written by
James Madison) which addresses the powers of the federal government
relating to intercourse with foreign nations. The question addressed in the
Federalist is, Why should these particular powers be given to a central
authority and not reserved to the states? The answer with regard to the
powers to make treaties and to send and receive ambassadors, said Madison,
was self-evident; they "speak their own propriety," and merely repeat
powers already conceded to a central authority in the Articles of
Confederation. 26 As to the power to define and punish piracies and felonies
committed on the high seas, Madison argued that "the provision of the federal
articles [i.e., the Articles of Confederation] on the subject of piracies and
felonies, extends no farther than to the establishment of courts for the trial of
these offences. " 27 And, he went on, "The definition of piracies might perhaps
without inconveniency, be left to the law of nations; though a legislative
definition of them, is found in most municipal codes." 28 By distinguishing
between the "law of nations" and "most municipal codes" Madison seems to
have denied the relationship between the two sources of substantive law
considered inherently linked by Blackstone and a narrow majority of the
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Convention. But Madison went no further, and it appears that he did not
regard the issue as sufficiently pressing in 1788 to be an obstacle to the states
adopting the new Constitution. He seems to have regarded "piracy" as a
"crime" in fact defined by the "law between states." But he has left us no
other clue as to how he believed that law was evidenced and what its
jurisdictional terms and substantive provisions might have been.
This glib reference to "piracy," reminiscent of the remark by Justice
Potter Stewart of the United States Supreme Court nearly two hundred years
later regarding pornography, that he could not define it, but he knew it when
he saw it, can be contrasted with the somewhat more elaborate treatment
Madison gave "felonies on the high seas," a definition of which he felt was
"evidently requisite:"
Felony is a term ofloose signification even in the common law of England; and of various
import in the statute law of that kingdom. But neither the common, nor the statute law
of that or of any other nation, ought to be a standard for the proceedings of this, unless
previously made its own by legislative adoption. The meaning of the term as defined in
the codes of the several States, would be as impracticable as the former would be a
dishonorable and illegitimate guide. It is not precisely the same in any two of the States;
and varies in each with every revision of its criminal laws. For the sake of certainty and
uniformity therefore, the power of defining felonies in this case, was in every respect
necessary and proper [for the central government]. 29
As to "offenses against the law of nations," Madison seems to have
conceived them as not applicable to individuals at all, but possible sources of
public conflict if a single state could determine for itself the propriety of its
public acts that impinge on the sovereignty of a foreign power:
These articles [of Confederation] contain no provision for the case of offences against
the law of nations; and consequently leave it in the power of any indiscreet member to
embroil the confederacy with foreign nations. 30
There is no other word in the Federalist addressed to that provision of the
Constitution, or any explanation of why it should be within the power of the
Congress, rather than the Executive and perhaps the Senate through
diplomatic negotiation and treaty, to define "offenses against the law of
nations" as so conceived.
The difficulties of defining "piracy" became apparent when the first
Congress attempted to implement these provisions by statute. The problems
of jurisdiction and criminal law enforcement's needs for some degree of
specificity in setting out the precise limits that a person could transgress only
at risk of punishment by public authorities of a government with limited
powers, could no longer be assumed away or covered over with Blackstonian
or Madisonian generalities. 31
"Piracy" as a Municipal Law Crime in the United States
The Court System. The Judiciary Act of 24 September 1789, 32 section 9, gave to
each of the thirteen original federal "District Courts" exclusively of the
128 The Law of Piracy
courts of the several states, cognizance of all "crimes and offences that shall
be cognizable under the authority of the United States, committed within
their respective districts, or upon the high seas" where the punishments did
not exceed 30 stripes with a whip, a fine of $100, or imprisonment of six
months. In addition to this rather minor criminal jurisdiction, the District
Courts had civil jurisdiction in "all civil causes of admiralty and maritime
jurisdiction" (but not superseding state Common Law jurisdiction in any
cases of overlap), and concurrent jurisdiction with state courts and federal
Circuit Courts "of all causes where an alien sues for a tort only in violation of
the law of nations or a treaty of the United States." 33 The Districts were
grouped into three "Circuits, " and the Circuit Courts were presided over by
a District Court Judge and two Supreme Court Justices. These Circuit Courts
were given original jurisdiction over "all crimes and offences cognizable
under the authority of the United States" with some irrelevant exceptions,
and concurrent jurisdiction with the District Courts over crimes within their
original jurisdiction. They also served as appeals courts from District Court
cases
34
The Substantive Law of 1790
The Definition. The substantive law relating to "piracy" was the Act of
30 April 1790, the pertinent part of which says:
8. . . . That, if any person or persons shall commit upon the high seas, or in any river,
haven, basin or bay, out of the jurisdiction of any particular state, murder or robbery, or
any other offence which if committed within the body of a county, would by the laws of
the United States be punishable with death; or if any captain or mariner of any ship or
other vessel, shall piratically and feloniously run away with such ship or vessel, or any
goods or merchandise to the value of fifty dollars, or yield up such ship or vessel
voluntarily to any pirate; or if any seaman shall lay violent hands upon his commander,
thereby to hinder and prevent his fighting in defence of his ship or goods committed to
his trust, or shall make a revolt in the ship; every such offender shall be deemed, taken
and adjudged to be a pirate and felon and being thereof convicted, shall suffer
death . . . 35
Sections 10 and 11 of that Act extend the same punishment to "any person"
knowingly assisting or advising any other person "to do or commit any
murder or robbery, or other piracy aforesaid, upon the seas" and provide for
imprisonment and fine for those who help the "pirate or robber" after the
fact. Under section 12, a separate offense subjecting the offender to
imprisonment and fine is created for "any person" who commits
manslaughter upon the high seas, or attempts to corrupt any member of a
ship's company to yield to pirates or to turn pirate or to trade with any pirate
knowing him to be such, and any "seaman" who confines the master of any
ship or endeavours to "make a revolt in such ship."
There appear to be no statutes requiring those hunting pirates to get letters
of marque and reprisal or any other license from the federal authorities. 36
United States Law 129
The notion that "piracy" was a gap-filling legal conception relevant only
when no territorial jurisdiction applied, and that the normal rules of
jurisdiction would apply to limit a state's jurisdiction to traditional bounds,
i.e., not to apply to the acts of foreigners without minimal contacts with the
United States on which criminal jurisdiction could be based, appeared very
early despite the "any person" language of the statutes. A Captain Hickman
(nationality not specified) in 1792 appears to have landed in the French colony
of Martinique and absconded with some slaves, which he landed in Georgia
and tried to sell. The Attorney General, Edmund Randolph, advised
Secretary of State Thomas Jefferson on 1 November 1792 that "the offence
would seem to be piracy; but it may prove, when the precise place of its
commission shall be fixed, to be of a merely municipal kind," implying that
the French jurisdiction would exclude American even though the "pirate"
was caught within the territorial jurisdiction of an American court. The
opinion also sheds some light on the original intention of the provision of the
Judiciary Act of 1789 extending the jurisdiction of District Courts to the tort
claims of aliens alleging the tort to be a violation of the law of nations.
Randolph instructed the United States Attorney (the federal District Court's
prosecuting official) in Georgia "To prosecute the culprits criminaliter, as far as
the law will permit," and Randolph went on:
If the criminal process should be insufficient to procure [the restitution of the slaves to
their owner in Martinique], to institute the necessary civil process for the like purpose,
with the approbation of the owners or their agent. The last remark is made in order to
impose the expense of a suit upon the individuals interested, rather than to assume any
responsibility on the United States. 37
Apparently, the alien tort claims provision was envisaged by Randolph as a
supplement to criminal process to permit the victim of a wrongful taking
abroad to recover his property when the tort law of the place of taking and
the tort law of the United States coincided and the taker or the property was
in the territorial jurisdiction of American courts. It would have had obvious
applicability to aliens seeking to recover their goods from "pirates" as well as
from those taking their property abroad, but seems to have rested on
Blackstone's naturalist conception of the "law of nations."
Further indications exist of the jurisdictional limits felt to be implicit in the
international system and not overcome by general words applying to "any
person" in statutes relating to "piracy." In 1795 some Americans who had
helped plunder the British colony of Sierra Leone were apprehended in the
United States. Attorney General William Bradford advised Edmund
Randolph, now Secretary of State:
So far, therefore, as the transactions complained of originated or took place in a foreign
country, they are not within the cognizance of our courts; nor can the actors be legally
prosecuted or punished for them by the United States. But crimes committed on the high
seas are [emphasis sic] within the jurisdiction of the district and circuit courts of the
United States; and, so far as the offence was committed thereon, I am inclined to think
130 The Law of Piracy
that it may be legally prosecuted in either of those courts in any district wherein the
offenders may be found. But some doubt rests on this point. . . . 38
Again, the relationship between criminal and civil jurisdiction was noted,
and Bradford went on:
But there can be no doubt that the company or individuals who have been injured by
these acts . . . have a remedy by a civil suit in the courts of the United States; jurisdiction
having been expressly given to these courts in all cases where an alien sues for a tort
only, in violation of the laws of nations . . .; and as such a suit may be maintained by
evidence taken at a distance, on a commission issued for that purpose, the difficulty of
obtaining redress would not be so great as in a criminal prosecution, where viva voce
testimony alone can be received as legal proof. 39
The first hint that "piracy" might be a crime of universal jurisdiction as far
as the United States was concerned came in 1798 when the Attorney General,
Charles Lee, advised the Secretary of State, Timothy Pickering, that an
extradition request from Great Britain for three "murderers" under the
terms of the Jay Treaty of 1794, 40 could be denied:
The criminal tribunals of the United States are fully competent to try and punish persons
who commit murder on the high seas, or piracy, as may appear from the 8th . . . [section]
of the act of 30th April, 1790. One of the persons (Brigstock) is a citizen of the United
States; and it is not to be reasonably expected that his country will not exercise the right
of trying him. . . . [The other two may also be Americans.] But, supposing them to be
foreigners, the stipulation in the 27th article [of the Treaty of 1794] is not applicable to
their case; and as they are triable in the courts of the United States ... I deem it more
becoming the justice, honor, and dignity of the United States, that the trial should be in
our courts. 41
The hint is not too broad. Not only was there an undoubted link of
nationality on which to base jurisdiction over Brigstock, and what seems to be
a hope that the same link would be found with regard to the other two, but the
crime involved in the British request was not "piracy" at all; it was "murder"
within the terms of the treaty. The rationale does not flow from an analysis of
the crime of "murder on the high seas" being included in the concept of
"piracy" and therefore subject to universal jurisdiction, but, although it is not
clear what the basis was for American jurisdiction if not nationality, from a
direct jurisdiction asserted over "murderers" whose acts were committed on
the high seas. The assertion of a universal jurisdiction over "murder" on the
high seas, if such it was intended to be, was based on the competence of
American courts as set forth in the statute of 1790, not on any analysis of
public international law or any measuring of the statute's provisions against
the legal powers under public international law of the United States to assert
jurisdiction over the criminal acts of foreigners on the high seas. Apparently
the desire to uphold that jurisdiction as a matter of American policy, and to
state it in terms that would apply equally to "piracy" and, indeed, any other
"crime" defined by an American statute, would serve equally well as a direct
assertion of universal jurisdiction. The logic of the opinion would support the
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effectiveness in American law of any statute applying to any person on the
high seas, and seems to challenge the British government to find a reason in
international law why the American assertion was wrong. No British
response to this position has been found.
Indeed, on closer examination, the position taken by Attorney General Lee
seems to have been both unnecessarily broad and unnecessarily narrow. If the
accused committed their "murder" from or in an American vessel, and
British assertions of jurisdiction were based on some effects on British
subjects or in a British vessel, there would seem to have been an overlapping
jurisdiction. If the "murder" had been done solely in a British vessel with no
American contacts other than the nationality of one of the accused murderers,
the assertion seems extreme that American jurisdiction existed over accused
(possibly British) foreigners for their acts in a British vessel (presumably,
from the fact of the extradition request) on the basis that "the high seas" was
within concurrent territorial jurisdiction of all states including the new
United States of America. Such an assertion, denying the exclusiveness of flag
state jurisdiction over its own nationals in its own vessels on the high seas,
seems a formula for universal policing of everything at sea, and was surely
more than the United States would have conceded to Great Britain with
regard to American nationals in American vessels. Although the full facts are
not before us, it seems likely that Lee was making a broader argument for new
national pride and policy reasons than a closer examination of the case and
more mature judgment would warrant.
Narrower arguments were available. The same treaty of 1794 in fact
devotes several articles to the treatment of privateers and pirates. If it had
really been Lee's position that the accused were "pirates," and not
"murderers" subject to extradition under the peculiarly narrow terms of the
treaty, the terms related to "pirates" would have applied and extradition
denied on the narrow ground that the treaty envisaged a distinction between
the two crimes and that the "murder" provision simply did not apply. Why
Lee chose to make a wide assertion of American jurisdiction over
"murderers" on the high seas as distinct from "pirates" is not known, but
extreme "positivism" by policy-oriented officials not charged with judicial
responsibilities can be seen from time to time in many newly independent
states (and occasionally in some very old states), and there is no reason to
think that the officials of the United States of America in its early days were
immune from the same urge to flex the muscles of statehood until its full
implications were reached.
A similar position was asserted by Attorney General Lee a few months
later, when the United States Attorney in Yorktown, Virginia, asked for
guidance with regard to the ship Nigre, taken as a prize by the U.S.S.
Constitution during the undeclared war with France and found to be of
doubtful flag. On 20 September 1798 Lee replied (sending a copy to the
132 The Law of Piracy
Secretary of State), that if the ship is a "pirate," all its crew, of any nations,
can be tried in the United States Circuit Court for Virginia. Property rights in
the ship and her cargo, on the other hand, were directed to be submitted to the
District Court in Virginia "according to the laws of congress, and the usage
and practice of admiralty in prize cases." 42
That Lee's policy-maker-positivist approach was not universally shared in
the United States in the 1790s is evident from the terms of the Treaty of 1794
itself. The principal American negotiator of that Treaty with Great Britain
was John Jay, the first Chief Justice of the United States Supreme Court
(1789-1795). It is therefore not surprising that many of its terms were devoted
to technical legal problems of assuring that property claims deriving from
possible illegal captures at sea by both sides, as well as many other problems of
debt collection and land tenure, were addressed. Three articles are pertinent
to this study.
Article 19 deals with men of war and privateers who commit outrages
against the persons of the other side under color of their commissions. In such
a case, the treaty provides that "they shall be punished, and shall also be bound
in their persons and estates to make satisfaction and reparation for all
damages, and the interest thereof, of whatever nature the said damages may
be. " Nowhere in the article are they referred to as "pirates" or as "deemed to
be" or "treated in the same way as" "pirates." It appears that all action in
excess of a commission was to be compensated by "sufficient security by at
least two responsible sureties, who have no interest in the said privateer"
placed before a "competent judge. " It is possible that under an approach such
as this, Captain Kidd would have gone free, although that is doubtful in view
of the emphasis in his trial given to his failure to submit his captures to a prize
court. 43
Article 20 deals directly with "pirates" as such:
It is further agreed that both the said contracting parties shall not only refuse to receive
any pirates into any of their ports, havens, or towns, or permit any of their inhabitants to
receive, protect, harbor, conceal or assist them in any manner, but will bring to condign
punishment all such inhabitants as shall be guilty of such acts or offences.
And all their ships, with the goods . . . taken by them and brought into the port of
either . . , shall be seized . . . and shall be restored to the owners . . . even in case such
effects should have passed into other hands by sale, if it be proved that the buyers knew
or had good reason to believe or suspect that they had been piratically taken.
It appears to be assumed in this article that the definition of "pirate" was
known to both parties, and from the emphasis on returning property to its
owners it appears that the definition was related to wrongful takings of
property — robbery within the jurisdiction of Admiralty courts, presumably.
There is no hint of a broader definition in the text.
United States Law 133
This reading of article 20 of the 1794 Jay Treaty is verified by article 21:
And if any subject or citizen of the said parties respectively shall accept any foreign
commission or letters of marque for arming any vessel to act as a privateer against the
other party, and be taken by the other party, it is hereby declared to be lawful for the
said party to treat and punish the said subject or citizen having such commission or
letters of marque as a pirate.
It would appear that the national legislation of each party making it
"piracy" for their respective nationals to accept privateering commissions
from third parties to act against their own country 44 was not regarded as
codifying a more general rule of international law forbidding adventurers
taking foreign commissions, but only as an aspect of the national law related
to treason. 45 The fact that such activity was regarded as not covered in the
preceding article referring generally to "piracy" without any definition, but
was the subject of an article of its own, and that a very limited one merely
expanding the national rule to cover acts undertaken against only the other
party under color of a foreign commission, seems to indicate that the drafters
of the treaty did not regard taking a foreign commission as part of the basic
conception of "piracy" in 1794. Article 21 itself did not even clearly say that
the forbidden activity by subjects or citizens of each was "piracy," but only
that if either party were injured by such activity it could lawfully as far as the
treaty partners were concerned treat and punish a perpetrator of the other
nationality as it would treat one of its own people acting under such a
commission against the capturing state, "as a pirate." Thus it appears that to
the drafters of the Jay Treaty of 1794, "piracy" was indeed a crime punishable
by the municipal law of either party, but the jurisdictional rules and the
applicability of the law to foreigners, including those of the other treaty
partner's nationality, were not clear, and the substance of the "crime" itself
was related to the English legal conception of "piracy " being a municipal law
crime equivalent within the traditional English Admiralty jurisdiction to
robbery on land. It did not clearly include "murder."
These provisions of the Jay Treaty were in fact personally drafted by John
Jay. 46 The distinctions between privateers exceeding their commissions,
nationals accepting foreign commissions, and "pirates" reflected instructions
drawn up by Edmund Randolph as Secretary of State pursuing an outline
prepared by Alexander Hamilton. 47
Pinckney's Treaty, the Treaty of 27 October 1795 between the United
States and Spain, follows a similar pattern with variations. There is no
provision regarding persons on either side exceeding their privateering
commissions. Nor is there any provision requiring each side to bring
"pirates" and those who consort with them to condign punishment. The
reasons for these omissions are not clear from available secondary material. In
place of Jay's statute-like language regarding the return to owners of ships
and goods "if it be proved that the buyers knew or had good reason to believe
134 The Law of Piracy
or suspect that they had been piratically taken" is a much more general
obligation seeming to envisage either national enforcement through
implementing legislation along the lines of Jay's language, or simple political
handling without the involvement of courts and judges:
Each Party shall endeavor by all means in their power to protect and defend all Vessels
and other effects belonging to the Citizens or Subjects of the other, which shall be
within the extent of their jurisdiction by sea or by land, and shall use all their efforts to
recover and cause to be restored to the right owners their Vessels and effects which may
have been taken from them within the extent of their saidjurisdiction whether they are
at war or not with the Power whose Subjects have taken possession of the said effects. 48
Some indication that the principles of this article were intended specifically
to apply to "pirated" goods and vessels, and not just those of foreign privateers,
is in a later article specifically applying the general principles to "pirates," but
with no greater legal detail of a sort that would be helpful to a judge:
All Ships and merchandize of what nature soever which shall be rescued out of the hands
of any Pirates or Robbers on the high seas 49 shall be brought into some Port of either
State and shall be delivered to the custody of the Officers of that Port in order to be
taken care of and restored entire to the true proprietor as soon as due and sufficient proof
shall be made concerning the property thereof. 50
Another article treats "pirates" as if a natural hazard comparable to
weather:
In case the Subjects and inhabitants of either Party with their shipping whether public
and of war or private and of merchants be forced through stress of weather, pursuit of
Pirates, or Enemies [sic], or any other urgent necessity for seeking of shelter and harbor
to retreat . . . they shall be received and treated with all humanity. . . . 51
The only other mention of "pirates" in the Treaty seems to be in article 14,
closely paralleling article 21 of Jay's Treaty. It concludes that a citizen or
subject of either side taking commissions or letters of marque to act against
the subjects or property of the other side "shall be punished as a Pirate." 52
This seems considerably more direct than the equivalent term of Jay 's Treaty
which merely made it lawful as a matter of bilateral treaty for each party to
treat an illegal licensee of the other nationality as a "pirate," but did not
require such treatment, and seems much more doubtful that such treatment
was proper as a matter of international law. Since there are no known
prosecutions for "piracy" under these provisions, and no known diplomatic
correspondence concerning the interpretation of these terms of the two
treaties, it seems unnecessary to analyze the differing conceptions of the
negotiators of the two documents any further.
American courts in the first decades of the 19th century tried to translate
the statutory language into rules that could be administered to achieve the
political results they supposed were intended. In doing so, they did not have
the freedom of policy-making positivists like Attorney General Lee to
interpret their conceptions of law into clear rules on the basis of their
perceptions of the political interest of the United States or pride in their
United States Law 135
hard-won independence. The most articulate judges took a basically
"naturalist" view when trying to expand by interpretation the conceptions
embodied in the language of the statute, but were held back by the deep
Common Law traditions of judicial restraint and various natural law
perceptions antithetical to expansive interpretations, like the notion that an
accused criminal must have clear notice of the substance of the rule he is
supposed to have transgressed. The judges were deeply split in their
perceptions of the natural law and the balance to be struck by the competing
legal, as well as policy, interests.
The leading judge seeking to expand the definition of "piracy" and the
jurisdiction of American courts to deal with it, was Joseph Story of
Massachusetts, who sat on the Supreme Court 1811-1845. In two cases in 1812
he set out his reasoning.
The first case involved a taking by the defendants, Tully and Dalton, of an
American vessel, the George Washington, while Uriah P. Levy, its Captain, 53
was not on board. Since he was not put in "fear," as the Common Law of
"robbery" would have required (the taking was thus more akin to the
Common Law crime of embezzlement — the unlawful taking by a person with
right to possession), to the degree "piracy" was supposed to be only
"robbery" within Admiralty jurisdiction, the taking was not "piracy. "Judge
Story charged the jury in the Federal District Court that "at the common law,
the offence of piracy consisted in committing those acts of robbery and
depredation upon the high seas, which, if committed on land, would have
amounted to a felony there. " 54 This, of course, treats the entire operative part
of the statutes of 1536 and 1700 as if containing a single definition of "piracy,"
making even the least "felony" within the jurisdiction of the Admiral into a
capital offense. There is no known precedent for that position in English
cases, and no evidence that the Congress intended that result when passing the
statute of 1790. Nonetheless, Judge Davis concurred with Story and the two
defendants were convicted of "piracy."
The logic used by Story and Davis deserves some closer examination.
Story's assertion, that piracy was an offense at Common Law and as such was
identical to depredation upon the high seas which if committed on land would
have amounted to felony there, was taken verbatim from Blackstone. 55 But
where a careful analysis of the precedents shows Blackstone to have written
more than the actual cases would bear, apparently accepting as persuasive, at
least, some of the more extreme dicta of Sir Leoline Jenkins as to the
definition of "piracy" under English municipal (but not technically
"Common") law, Story used Blackstone 's summary as a base for further
expansion of the concept. "It was not necessary by the common law," Story
wrote, "that the offense should be committed with all the facts necessary to
constitute the technical crime of robbery." 56 Abandoning this line of logic
before facing the obvious problems of showing which facts should be
136 The Law of Piracy
disregarded in holding something technically not "robbery" within the
Admiral's jurisdiction to be nonetheless "piracy" as a matter of Common
Law, Story adverted to the statute of 1790. In his view the "crime" of
"piracy" in the United States from 1790 on included the acts of "any . . .
mariner of any ship [who] . . . shall piratically and feloniously run away with
such ship" 57 regardless of whether such running away had been "piracy" at
English Common Law. All that was needed under the statute, said Story, was
"piratical and felonious intent." 58 The logic by which statutory language
under which the adverbs "piratically and feloniously " which modify the act,
"run away," become indicators of "intent" is not entirely clear, but it does
not seem outrageous. Story did not explain the linkage, which presumably
rested on distinguishing between running away with the vessel to avoid a loss
to the owners, which would not be a crime, and running away with an intent
to convert the vessel or cargo to the mariner's own use, which Story felt
should be a crime, even if not "piracy." He concluded merely: "After much
reflection ... I remain of the same opinion that I expressed at the trial,"
affirming as part of an appeal panel in the Circuit Court the charge to the jury
he had given as a trial judge in the District Court.
But there is a missing step; the intent to convert the ship or cargo coupled
with the running away might well properly be denominated a crime, but was
it "piracy," warranting a death penalty? Judge Davis focused on that
question, concurring with Story's conclusion on the basis of a citation to
Molloy which, in the original, says merely:
If a Ship shall ride at Anchor, and the Mariners shall be part in their Ship-Boat, and the
rest on shore, and none shall be in the Ship, yet if a Pirat shall attacque her and rob her,
the same is Piracy. 59
While it might well be argued that this passage in Molloy is part of a series
of sections fixing technical limits to the crime of "piracy " and not intended to
be used as a basis for expanding the definition by analogy to cases in which the
technical definition of "robbery" could not be applied to the acts treated in
particular statutes and isolated cases as if "piracy, " there is room for opinions
to differ. Tully was hanged and Dalton eventually pardoned because the
judges were convinced he was contrite.
Another case (in 1818, U.S. v. Howard and Beebee), 60 illustrates the
definitional problems inherent on the Act of 1790. Defendants were pilots in
Delaware who had guided a suspicious vessel to anchorage and were now
accused of helping the absconded master and crew of that vessel in violation
of section 12 of the Act of 1790 forbidding assistance to "pirates." The
question was whether, to fit section 12, the "pirates" being helped had to have
been shown to have violated section 8, 61 thus whether a full-scale hearing had
to be held on the misdeeds and the legal classification for those deeds of people
not before the court. Bushrod Washington, like Story a participant in the
Supreme Court majority decision in U.S. v. Palmer shortly before, 62 had to
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retreat like Story from his expansive naturalist position. Like Story he did so in
practice while trying to preserve his position in theory. In the Palmer case, the
acts of foreigners against foreigners only was held not to be "piracy" within the
intent of section 8 of the Act of 1790, according to Washington, apparently
mixing the jurisdictional problem with the question of the substantive definition
of the term. Continuing along the same line, Washington charged the Jury that
if the defendant is properly within the scope of American jurisdiction, and in
this case he clearly was since "the pilot boat is an American vessel, and the
persons on board were citizens of the United States, " then "The pirate [sic] with
whom the confederacy and correspondence takes place, may, in our opinion, be
any sea robber or pirate, according to the general law of nations." Section 12
was thus severed from the restricted meaning of section 8 as it emerged from the
Palmer case. But were the absconded persons "pirates" according to the general
law of nations? To that question, Washington admitted doubts that only a jury
could resolve. They might have been privateers acting solely against Spain
"under a commission from the revolutionary government of South America
(which would not amount to acts of piracy)," of the legal possessors of property
which they were taking to their own use without the violence necessary to fit a
charge of "piracy ," merely criminals by the law of the flag of the vessel they had
abandoned. These and other doubts he laid before the jury, which acquitted the
defendants. 63 The charge was never appealed to higher courts, thus the question
of whether a general international law of "piracy" existed under which
American courts could even indirectly exercise a universal jurisdiction over the
acts of foreigners directed solely against foreigners beyond the limits of the
Palmer case as expanded in the Klintock case, to be discussed below, was not
completely resolved.
Jurisdiction. It would appear from U.S. v. Tully and Dalton 64 and from the
passage in Molloy cited by Judge Davis that the English conception of the
jurisdiction of the Admiral in England, which extended to all navigable waters,
was applied to foreign waters also; that the phrase "high sea" had a somewhat
different meaning than it has today, when it is distinguished from territorial
waters.
That this broad interpretation of the phrase "high sea" was in fact the
interpretation held by Story and other expansive interpreters of the law needed
to suppress "piracy," seems clear. In the other case in 1812, U.S. v. Ross, 65 the
vessel was only a half mile from shore when the crew stabbed a passenger, and
from two to six miles from shore when they threw his body overboard. Story
declined to resolve the case on the basis of technicalities regarding the assault
(stabbing) and the greater distance from shore when the passenger actually
died or his body was disposed of. Instead he asked rhetorically whether the
Act of 1790, section 8, in referring to "the high seas" was intended by the
Congress to include foreign harbors. His answer was Yes. It means, he said:
138 The Law of Piracy
[A]ny waters on the sea coast which are within the boundaries of low water mark;
although such waters may be in a roadstead or bay within the jurisdictional limits of a
foreign government. Such is the meaning attached to the phrase by the common law; and
supported by the authority of the admiralty, perhaps to a more enlarged extent. 66
To the extent this language was applied only to an American flag vessel and
acts within it, it seems to be addressing a different set of facts than those
envisaged by the jurisdictional provisions of the Act of 1790, section 8. To the
extent it was addressing facts within the contemplation o£ that statute,
Story's reasoning seems inconsistent with the language of the statute, which
clearly distinguishes between "high seas" and "any river, haven, basin, or
bay," and specifically requires that in either case the act, to be within the
terms of the statute must be "out of the jurisdiction of any particular state."
In sum, his conclusion supports universal jurisdiction with regard to
"piracy," defined in the Tully and Dalton case to cover all Common Law
felonies that might be committed on the "high sea," and views the "high sea"
as including foreign territorial waters; there is no language of limitation with
regard to the flags of the vessels involved or the nationality of the accused or
their victims. To the extent that construction rests on statutory language
merely interpreted in the light of American municipal law (including the
inherited concepts of English Common and Admiralty Law), it would seem to
place the United States in a position of world policeman with regard to all
felonies (by American definitions) occurring in any navigable waters. The
underlying assumption seems to be the natural law of personal security,
commerce and property, with overlapping jurisdiction available to all states
to safeguard those natural rights. It is Molloy carried beyond Molloy
himself, 67 to the far reaches of Jenkins. 68
That this was in fact his view was confirmed some 20 years later when
Story, in U.S. v. Pedro Gilbert & Others, 69 held that the British had
overlapping jurisdiction with the United States in a case in which he appears
to have assumed that there were no British contacts at all except as world
policeman. Despite the American legislation to be discussed below
superseding the Act of 1790 in large part, Story applied the same section,
section 8, of that Act, so the case is perhaps better discussed here than in its
chronological place.
The defendants were Captain and crew of a Spanish vessel which had
allegedly attacked and robbed an American vessel on the high seas. The
Spanish vessel was later found in port in Africa fitted out for slave trade, and a
British warship acting under arrangements between Great Britain and Spain
for the suppression of the slave trade arrested the crew and took them to
England. The British then transferred the prisoners to the United States for
trial on the American charge of "piracy" growing out of the first incident.
The legality of the "extradition," or administrative transferrence of custody,
was not at issue. The degree to which the British might have had jurisdiction
United States Law 139
to try the accused for their attack on an American vessel was raised as a point
by the defendants seeking to overturn their American conviction, and Story
addressed the point in a long footnote:
The British Government, on this occasion, finding [Spanish] persons in England in
custody of one of its own officers, accused of piracy on an American vessel, chose to send
those persons here, where the best evidence could be obtained, and where the greatest
facilities and advantages for their trial were to be found. Over piracy, all nations
exercise equal jurisdiction and the British Government might justly have exercised it in
this case. But they preferred, that the offenders should be tried by the citizens of that
country against whom the offence had been committed. . . . [Reciting the difficulties
and dangers faced by the British commander, Captain Trotter, in capturing the
accused.] Now what inducement had Captain Trotter to encounter all this, but a high
sense of public duty, not merely to his own country, but to the commercial world. 70
It is apparent that to Story there was not only universal jurisdiction to
apply to "pirates" a municipal law that reflected what he must have felt to be
universal prohibitions against unlicensed violence at sea, but there were no
inhibitions to that application except the practical ones of marshaling
evidence. The decision not to try the accused in England was based not on any
lack of a legal interest in their activities against a foreign vessel, but only on
the practicalities of the particular case. The legal interest seems to have been
felt to derive from a universal duty to the "commercial world" to safeguard
property rights based on natural law, and not the particular law of any
country. Since the defendants were in fact transferred to the custody of, and
taken to trial in, the United States, a country that clearly had the legal interest
necessary to support such action against Spanish or other objection on much
narrower grounds, as the country whose property law had been violated by
the Spanish attack on an American flag vessel, this long passage was
unnecessary to the disposition of the issue. Moreover, in view of the position
on this point of extraterritorial reach of American criminal jurisdiction, and
the way in which "piracy" was regarded as an "American" rather than an
"international" crime by the majority in the Supreme Court in cases to be
discussed below, this footnote by Story can probably best be regarded as an
expression of a deeply felt "naturalist" position by a learned jurist who had
lost the jurisprudential argument at a higher level. While Story's position
never was adopted as the legal position of the United States Supreme Court,
and in the Pedro Gilbert case was expressed as mere dictum, thus did not take
a position of legal significance for purposes of analyzing the law as it was
actually applied, that approach has continued to seem persuasive to many
jurists regardless of the dominance of positivism as the philosophy of the
Supreme Court. Story's approach certainly represents a strain of legal
thought that has been influential in the evolution of the law regarding
"piracy" in the United States.
Since the statute of 1790 was taken by 1812 to define "piracy" for purposes
of American trials, and trials of accused "pirates" could not be the subject of
140 The Law of Piracy
foreign complaint based on the substance of the law defining "piracy " unless
the accused "pirate" were considered to be beyond the proper reach of
American prescriptive jurisdiction, the key question before the American
courts was the proper reach of that jurisdiction. Story's approach, that all
states have adequate territorial jurisdiction in navigable waters anyplace (by
defining "high sea" to include a foreign bay or roadstead) subject only to the
overlapping jurisdiction of other states, but not any notion of the territorial
state having exclusive jurisdiction over its ships or close-in waters, was not
wholly accepted even in the United States. Indeed, one of the very first
surviving opinions of an American Attorney General, and one of the most
emotional, was an opinion by Edmund Randolph dated 14 May 1793 to
Secretary of State Thomas Jefferson holding that Delaware Bay (and by like
logic Chesapeake Bay) was "internal waters of the United States and capable
of being closed to foreign vessels" and totally subjected to American law. 71
Since Story's language was not restricted to instances of "piracy, "but rested
on assertions of the Admiral's historical jurisdiction in English law for all
felonies (which Story defined as "piracy" — all felonies within the Admiral's
historical jurisdiction as viewed in England) it must have seemed intemperate
to some of his colleagues concerned with limiting foreign exercises of
jurisdiction in American bays and roadsteads.
The question received a definitive answer construing the Act of 1790,
section 8, in 1820. Bushrod Washington, sitting as a District judge in
Philadelphia, had charged a jury in 1819 along the same lines Joseph Story
would have used, that Peter Wiltberger, who killed a seaman on board an
American vessel at anchor in the Tigris River in China, about 35 miles inland,
14 miles below Canton, was acting on the "high sea" within the sense of the
Act of 1790. Wiltberger was convicted. 72 On appeal ultimately to the
Supreme Court, the conviction was reversed squarely on this point. The
Court, which included Justice Story, was unanimous; testimony to the
persuasiveness of Chief Justice Marshall, who wrote the opinion, and the
intellectual honesty of Justice Story when persuaded of his error. Marshall
took a strict positivist position. The criminal statutes must be construed
strictly to protect individuals from the exercise of arbitrary power by judges.
"The power of punishment is vested in the legislative, not the judicial
department," he wrote. The legislative purpose in enacting the statute of
1790, section 8, was not to assert jurisdiction over everybody any place, but
only in a certain place, the high sea and rivers, havens, basins or bays outside
the jurisdiction of any state. The Tigris River being wholly within the
jurisdiction of China, the American courts cannot derive jurisdiction over the
statutory offense from the words of the statute. Therefore, Wiltberger went
free. 73 Henry Wheaton, probably the most celebrated American scholar of
international law of the first half of the nineteenth century, wrote a long
analysis of the issue. In his view both Story and Marshall were right and
United States Law 141
Story's retreat was not a retreat in principle: English Admiralty jurisdiction
indeed extended into foreign ports, and American Admiralty jurisdiction
could do the same. But, he concluded, the statute of 1790 did not go so far.
Since federal criminal law in the United States rested on statute and not on
Common Law except as embodied in statutes, the lesser description of
jurisdiction contained in the statute limited the jurisdiction to less than the
court could have exercised at English law. The fact that the Congress
apparently did not intend to allow the court to exercise its full jurisdiction in
cases of "piracy " in foreign waters meant that the court could not exercise its
power over cases envisaged in the statute of 1790 beyond the limits set in that
statute. 74 Another statute could go farther without creating any legal
problems in the international legal order, in his view. But as long as no statute
in fact went farther, that issue would not have to be resolved. Wheaton
apparently gave no weight to the policy and possible legal reasons why the
Congress had not authorized the exercise of jurisdiction by American courts
in cases occurring in foreign navigable waters. It seems noteworthy that
Wheaton did not argue the obvious bases for jurisdiction, the flag of the vessel
and Wiltberger's American nationality. Indeed, since the incident occurred
within an American vessel, it is not clear why any international concept of
"piracy" was thought to be involved, or any inhibition on applying American
Admiralty prescriptions. Wheaton 's sympathies obviously lay with the
jurisprudential approach taken by Story as the entire point of his comment
was to preserve the theoretical possibility of universal jurisdiction based on
territorial principles and natural law against a Supreme Court majority
(including Story himself) that had carefully taken a very different position.
The question as to whether American jurisdiction covered acts by
foreigners on the high sea against victims who were not Americans reached
the Supreme Court in 1818. The holding in U.S. v. Palmer, et al., 75 among
many other points, 76 included the important rule of construction phrased by
Chief Justice Marshall as follows:
The constitution having conferred on congress the power of defining and punishing
piracy, there can be no doubt of the right of the legislature to enact laws punishing
pirates, although they may be foreigners, and may have committed no particular offence
against the United States. The only question is, has the legislature enacted such a law?. . .
[No.] [N]o general words of a statute ought to be construed to embrace [offenses] when
committed by foreigners against a foreign government. 77
Justice William Johnson dissented, going even further than Marshall and
the majority in denying power to the legislature. In his view "congress cannot
make that piracy which is not piracy by the law of nations in order to give
jurisdiction to its own courts over such offences. " 78 A consensus was reached
in the "Certificate" customary at the time to blend the views of all the
justices together on the broadest common position:
[T]hat . . . the crime of robbery, committed by a person on the high seas, on board of any
ship or vessel belonging exclusively to subjects of a foreign state, on persons within a
142 The Law of Piracy
vessel belonging also exclusively to the subjects of a foreign state, is not piracy within
the true intent and meaning of the act [of 1790, section 8] . . . and is not punishable in the
courts of the United States. 79
Shortly afterwards, indeed, after the passage by the Congress of further
legislation whose effect was to overrule the quoted part of U.S. v. Palmer 80
but relating to facts occurring before that later legislation took effect, the
Supreme Court reduced the impact of U.S. v. Palmer by asserting American
jurisdiction in cases in which no particular foreign jurisdiction would serve
despite the fact that the accused "pirates" and their victims were not
American nationals. Chief Justice Marshall spoke for a unanimous Court in
U.S. v. Klintock, a case involving a vessel sailing under the nominal control of
an unrecognized Mexican authority during a revolution in Mexico, but
exceeding any reasonable powers that could have been based on the laws of
war. Klintock had seized a Danish ship "animo furandi," and "not . . . jure
belli." 81 The capturing vessel was clearly "foreign." Marshall wrote:
Upon the most deliberate reconsideration . . . the Court is satisfied, that general piracy,
or murder, or robbery, committed in the places described in the 8th section [of the Act of
1790], by persons on board of a vessel not at the time belonging to the subjects of any
foreign power, but in possession of a crew acting in defiance of all law, and
acknowledging obedience to no government whatsoever, is within the meaning of this
act, and is punishable in the Courts of the United States. Persons of this description are
proper objects for the penal code of all nations; and we think that the general words of
the act of Congress applying to all persons whatsoever, though they ought not to be so
construed as to extend to persons under the acknowledged authority of a foreign State,
ought to be so construed as to comprehend those who acknowledge the authority of no
State. Those general terms ought not to be applied to offences committed against the
particular sovereignty of a foreign power; but we think they ought to be applied to
offences committed against all nations, including the United States, by persons who by
common consent are equally amenable to the laws of all nations. 82
The Certificate concludes:
That the act of the 30th of April, 1790, does extend to all persons on board all vessels
which throw off their national character by cruizing piratically and committing piracy
on other vessels. 83
The case illustrates the problems of judges caught between a natural law
orientation and positivist one. By natural law approaches, the rule towards
which the Court was striving seems more or less clear. There is, in that
conception, an underlying law forbidding interference with property as
defined by any national legal system or by natural law, but that natural law of
property yields to the positive law of any state within whose territorial or
other traditional jurisdiction (such as the nationality of the possessor of the
physical property) it comes. On the high sea, the law of the state whose flag is
flying over a vessel authorized by that law to fly it, governs. A person acting
outside that vessel, thus outside the flag-based jurisdiction traditionally
analogized to territorial jurisdiction, can interfere in property rights only by
United States Law 143
superimposing some other state's positive law on the positive law of the flag
state. This could be done by capture or, perhaps, even sinking the first vessel
and taking the property on board the capturing vessel or replacing the
captured vessel's flag with the captor's. The law of naval captures and
privateering evolved in Europe to prescribe the necessary rules as between
the states of Europe and other states participating in the European legal order,
such as the former European colonies in the Western Hemisphere and, if they
wanted to participate in the system, the Muslim states of the Mediterranean
Sea and some other societies that fit the pattern elsewhere, such as Thailand
and China. Disputes over the lawfulness of the capture at sea and the proper
disposition of captured property could as among these states be resolved by
diplomatic negotiation, counter-captures under limited letters of marque and
reprisal, or even the ultimate arbitrament of war. To the naturalist judges of
the United States Supreme Court in the early nineteenth century, the word
"piracy" could properly be used to attach legal results to captors outside the
system; those who sought to change property rights by naval capture but who
lacked the authority of a state within the system to supersede the law of the
flag state of the captured vessel with any new positive law. And natural law
would retain the rights to property in the holder prior to the capture. The
function of the international law of "piracy," as it was then conceived, was
thus to fill a gap in the legal order; to render punishable as "outlaws" those
who operated outside the system and whose actions were inconsistent with
the law within the system. All that was necessary for "standing" was that the
acts of the "pirates" impinge upon the system somehow. Normally this was
considered to flow from their taking of property against the rules of the
system, i.e., without the authority of a state behind them, and from people
whose property rights were blessed by the positive law of a state within the
legal order.
But the system, the legal order of Europe in the early nineteenth century,
required "standing" of any "state" within the system before a municipal legal
rule could be applied. In the case of captures at sea, the need for "standing"
was supplied by some legally sufficient contact with the event, normally the
connection, posited to rest on a fictitious "social contract," between the
victim of the depredation and some state within the system. Attempts by
"naturalist" jurists, like Story, to rationalize each state's authority to police
the seas, foundered on the hard rocks of the legal order itself, which limit each
state's jurisdiction to those cases in which the state has "standing." Rhetoric
of both naturalists and positivists in the late 17th century has been noted in
which the legal order's requirement for "standing" was disregarded, but U.S.
v. Palmer appears to be the first case in which a systematic treatment of the
question was attempted in the context of a real case, and American
"standing" was found lacking despite the apparent positivist decision by the
Congress in 1790 to disregard the international legal order in authorizing
144 The Law of Piracy
American courts to suppress an undefined "piracy." The naturalist reaction,
to find "standing" in U.S. v. Klintock by applying natural law as part o(
Blackstone's concept of the "law of nations" — the natural law that is
reflected not in the system of international distributions of authority to states,
but in the common municipal laws of all states participating in the system —
filled the gap. Under that approach, all states would have had equal rights to
apply their municipal laws related to "piracy," defined as robbery within the
municipal law jurisdiction of the "Admiralty," that branch of the municipal
court system that applied municipal law rules, including the law merchant
and other rules labeled part of the "law of nations" by Blackstone, to the acts
of foreigners against foreigners all on board foreign vessels, but only when the
accused "pirates" had no state system within the legal order to license the
taking in question. And even when the accused "pirate " was found flying the
Jolly Roger or some false, non-authorized national flag, or flag of some
unrecognized authority (i.e., some pretender to authority not accepted by the
capturing state as empowered within the legal order to issue a license), the
natural law background remained strong in Marshall and Story. The accused
must have been caught engaged not in a taking that might be justifiable but for
the lack of recognition, but in a taking that was robbery by the English
municipal law of robbery, involving animum furandi, the intention to take for
personal gain. Apparently, no middle ground was seen between such a taking
and a taking^We belli, by the law of war, which was not "piracy" even if the
taker did not have a license issued by a recognized authority.
Clearly, the system implied in U.S. v. Klintock was incomplete; many fact
patterns can be imagined that do not fit neatly into the categories supposed by
the Supreme Court to fill the field. The principal gap fell in the contemplation
of the availability of the law of war to unrecognized belligerent rebels such as
the American forces had been a generation before — would it not have seemed
monstrous to Chief Justice Marshall's generation if John Paul Jones had been
hanged by the British not as a rebel but as a mere "pirate?" 84
The Substantive Law of 1819
The Attempt to Avoid Problems of Definition, Jurisdiction and
Foreign Commissions. The immediate result of U.S. v. Palmer in the halls
of the Congress was the passage of a statute that simply ignored all the legal
problems. The Act of 3 March 1819 85 provided:
Sec. 5. . . . That if any person or persons whatsoever, shall, on the high seas, commit the
crime of piracy, as defined by the law of nations, and such offender or offenders, shall
afterwards be brought into or found in the United States, every such offender or
offenders shall upon conviction thereof ... be punishable with death. 86
The Act of 1819 was limited in time to one year, and this section was
continued without limit of time by section 2 of another statute passed on 15
May 1820. 87 This last Act with minor amendments, is still in force. 88 Instead o(
United States Law 145
defining the substantive law of "piracy," it refers to a definition supposed to
be contained in the "law of nations;" instead of addressing the jurisdictional
point raised by Justice Johnson and acknowledged in the Supreme Court's
Certificate, it takes an assertive "positivist" position as to the extent of
national jurisdiction apparently based on universality.
The new statute was immediately applied. A foreign vessel putting out
from "Buenos Ayres," the state now called Argentina formed out of the
Spanish Vice-Royalty of La Plata by 1816, was seized by mutineers including
Americans and turned to general "cruizing" without any commission from
anybody. The question was the amenability of the crew to the jurisdiction of
the American court before which both non-Americans and Americans had
been taken. Chief Justice Marshall sitting as an appeals judge in the Federal
Circuit Court in Virginia concluded:
It was impossible that the act [of 1819] could apply to any case if not to this. The case was
undoubtedly piracy according to the understanding and practice of all nations. It was a
case in which all nations surrendered their subjects to punishment which any
government might inflict upon them, and one in which all admitted the rights of each to
take and exercise jurisdiction. Yet the standard referred to by the act of congress . . .
must be admitted to be so vague as to allow of some doubt. The writers on the laws of
nations give us no definition of the crime of piracy. 89
In view of Marshall's doubts as to the substance of the law, the jury was
instructed to give a special verdict as to the facts alone, and the case was
referred to the Supreme Court for argument as to whether there was any such
thing as "the crime of piracy, as defined by the law of nations" within the
meaning of the Act of 1819. 90
At the Supreme Court level the case was called U.S. v. Smith and became
the leading case construing the Act of 1819. Justice Joseph Story wrote the
Court's opinion. He wrote:
There is scarcely a writer on the law of nations who does not allude to piracy as a crime
of a settled determinate nature . . . [Rjobbery or forcible depredations upon the sea,
animo furandi, is piracy. 91
His citations include a footnote seventeen pages long in which are cited
many of the works analyzed above, including Blackstone, the trials of
Dawson, Kidd and Green, and the writings of Grotius and Wooddeson,
among others. 92 To support the assertion that the English Common Law of
piracy is identical with the substantive crime of "piracy " at international law
he cited Hedges 's and Jenkins's charges to juries quoted above, 93 and
Blackstone. 94 There seems to be no independent legal argument other than
long quotations from the various ancient authorities, and no distinction is
drawn as to the jurisprudential bases for the various opinions or their possible
inappropriateness to the narrow facts to which those opinions were applied.
But Story's citations focusing on Marshall's single observation relating only
to "the writers on the laws of nations," but not to the law of nations, or
146 The Law of Piracy
international law, itself, seems to have convinced all but one of his colleagues
on the bench. The one dissenter was Justice Henry Livingston, who read the
words of the Constitution strictly to authorize the Congress to define
"piracy," not just to refer to a foreign law, international law, for this
purpose. In his view, a criminal statute, violation of which might result in
hanging, should define the prohibited acts directly. 95 The Certificate which
issued disregarded Livingston's position and found the reference to the law of
nations in the statute of 1819 to be sufficient, and that law sufficiently clear, to
justify hanging Smith, Chapels and the others. 96
The decision in U.S. v. Smith appears to have broken a logjam of "piracy "
cases, all of which were summarily handled by the Supreme Court
immediately afterwards. From the opinions loosely tied together in this series
of cases under one heading, U.S. v. Pirates, 97 it is clear that Justice Johnson
was not fully convinced by Story and that there were many loose ends still
remaining in the American approach to defining "piracy" and the scope of
American courts' jurisdiction under the Act of 1819. Justice Johnson found an
American legal interest sufficient for "standing" in all the cases but one, and
in that case the facts were found to bring the situation within the scope of U.S.
v. Klintock — the defendants having acted so as to lose all national character.
In U.S. v. John Furlong alias John Hobson 98 the Certificate is explicit in
finding a particular American basis for extending jurisdiction over the acts of
the Irish defendant against an English victim:
[I]t was not necessary that the indictment charge the prisoner as a citizen of the United
States, nor the crime as committed on board an American vessel, inasmuch as it charges
it to have been committed from [emphasis added] on board an American vessel, by a
mariner sailing on board an American vessel."
The American contact was the flag of the attacking vessel. In the one case in
which no American contact equivalent to this could be found, U.S. v. David
Bowers and Henry Mathews, U.S. v. Klintock was the sole authority needed
to support a Certificate holding:
That the act [of 1790] does extend to piracy committed by the crew of a foreign vessel on
a vessel exclusively owned by persons not citizens of the United States, in the case of
these prisoners, in which it appears that the crew assumed the character of pirates,
whereby they lost all claim to national character or protection. 100
The other cases all involved major American contacts making it
unnecessary to explore the possible incorporation of any rules of international
law into the municipal law of the United States.
Justice Johnson appears to have had serious reservations about U.S. v.
Bowers and Mathews. In an unclear separate opinion adverting to the one
case in which all the defendants are foreigners on board vessels owned by
foreigners, he wrote that in his view U.S. v. Palmer was the controlling
precedent rather than U.S. v. Klintock, apparently disagreeing with the
majority that the foreign "pirates" had wholly cast aside their national
United States Law 147
allegiances. Johnson nonetheless seemed to be willing to join with the
majority on the strange rationale that while murder would not be triable in
the United States other facts being the same, "piracy" being such a horrible
crime in its very nature was amenable to American jurisdiction. 101 But why
"robbery" is to be considered more horrible than "murder," and how
revulsion at the substance of the crime translates into rules of jurisdiction
which must be resolved before any court erected by any municipal system can
hear the substance of any accusation, is unexplained.
Justice Story's expansive view of American jurisdiction to right the wrongs
of the world was reflected also in two other cases in this series upholding jury
verdicts that labeled as "high seas" for the purpose of "piracy" charges,
roadsteads within three miles of a foreign state's coast: "[F]or, those limits,
though neutral to war, are not neutral to crimes." 102 The logic of U.S. v.
Ross 103 was apparently felt to be persuasive, perhaps in part because the Court
remembered the origins of the American three-mile limit in a series of
Secretary of States' almost arbitrary selections of a distance within which
foreign gunboats could be excluded without offending any foreign powers in
order to support American neutrality. 104 The notion that the Admiralty
jurisdiction of all states extended as a matter of overlapping territorial
jurisdiction to the navigable waters of the entire globe, rather than merely
within the vessels of the various states, seems to be implicit in the holding.
Substance Reexamined. In one respect the expanded view supported by
Story lost in this series of cases. The definition of the substance of the crime of
"piracy" asserted by Story in U.S. v. Tully and Dalton 105 to include all
"felonies" committed within Admiralty jurisdiction, not merely "robbery,"
was rejected by Story himself when forced to review the "writers" in U.S. v.
Smith. 106
Congress adopted as a matter of positive law Story's view of the utility of
the legal label "piracy" to condemn whatever crimes the municipal law
system of the United States wanted to attach the label (and its legal results) to
without regard for the historical evolution of the concept or the
jurisprudential concerns that run through the earlier writings. The most
notable legislation concerned the slave trade. Story loathed slavery as a
matter of natural law. While little could be done to abolish slavery within any
particular state of the new Union under the positive law compromises of the
Constitution of 1787, the Congress had the power to regulate foreign
commerce and as early as 22 March 1794 had enacted a law forbidding the
involvement of any person within the United States in the carriage of slaves in
commerce between the United States and any foreign country. 107 On 10 May
1800 another Act forbade any American citizen or resident serving on board a
foreign slave-trading vessel or holding any interest in the foreign slave
trade. 108 The piracy statute of 1819 does not mention the slave trade. But the
renewing statute of 15 May 1820 expressly makes it "piracy" with a penalty
148 The Law of Piracy
of death for Americans to be engaged in the slave trade abroad or to detain
a "negro" or "mulatto" with the intent to enslave (except for the
recapture of persons (!) already held in slavery by the operation of the law
of a state of the United States). 109 This use of the word "piracy" in
connection with the international slave trade presumably represents an
attempt by Story and others to develop the international law, as the "law
of nations, " by changing the municipal law of the United States, using the
label, and hoping that other states in the international legal order would
follow suit. To the extent that was the aim, it failed. 110 The American
legislation remained municipal law in the United States, but the treatment
of American active participants in the foreign slave trade as "pirates"
before American courts did not make it "piracy" at international law any
more than treason against the established order of England was made
"piracy" in the international legal order by the hanging of James's (and
Louis XIV's) Irish privateers in 1693. nl
The interplay between American municipal law resulting from the
statutes of 1819 and 1820, and the international law regarding the slave
trade, and the retreat Story was forced into against his own inclinations
was made clear shortly afterwards when an American naval vessel under
Lieutenant Stockton seized a French slaver off the coast of Africa and
France denied American jurisdiction to consider the case. Story upheld the
American jurisdiction in principle, but turned the vessel over to France
with an elaborate opinion seeking to bind France to apply its municipal
anti-slave-trade laws passed as a result of British pressures and the
Congress of Aix-la-Chapelle. 112 Story's reasoning is naturalist in holding
the slave-trade to be a violation of the law of nations (because illegal under
the law of all civilized states as well as in its nature inconsistent with
Christian and universal moral principle). But he finds positivist reasons in
policy for not applying the American municipal law: "The American
courts of judicature are not hungry after jurisdiction in foreign cases, or
desirous to plunge into the endless perplexities of foreign jurisprudence. "
He did not mention "piracy" or explain why the perplexities of foreign
jurisprudence would be pertinent to a "law of nations" case. 113
The issue appears to have been laid to rest in 1855. In that year a vessel sailing
under the American flag was taken to Philadelphia under arrest for participating
in the slave trade. The master of the vessel, Darnaud, was tried for "piracy"
under the Act of 14 May 1820 sees. 4 and 5. 114 There was evidence that he was
actually of French nationality despite the laws of the United States restricting
masters' licenses for American flag vessels to American nationals. There was
also a good deal of confusion as to the true ownership of the vessel, and it seems
likely that a true American owner had attempted to mask his illegal operations
behind various foreigners to whom title had been given, but not control or the
legal capacity to transfer title further. Judge Kane charged the jury with regard
United States Law 149
to the applicability of the American statute by which participation in the
slave trade was made a species of "piracy:"
[N]o State can make a general law applicable to all upon the high sea. Where an act has
been denounced as crime by the universal law of nations, where the evil to be guarded
against is one which all mankind recognize as an evil, where the offence is one that all
mankind concur in punishing, we have an offence against the law of nations, which any
nation may vindicate through the instrumentality of its courts. Thus the robber on the
high seas, the murderer on the high seas, the ravisher on the high seas, pirates all of them,
recognizing no allegiance to any country, because the very act violates their allegiance
to all their fellow men, if caught, may be punished by the first taker. And so too, if the
nations of the so-called civilized world, who are fond of calling themselves the whole
world, and of arrogating to themselves somewhat too readily all the rights that belong to
the whole world, could for once unite in defining that some one act should be regarded
as a crime by all, it may be that after such an agreement by all the world, the courts of
any one nation might without reference to the nationality of the individual undertake to
punish the offence he had committed.
But so soon as we leave these crimes of universal recognition, the jurisdiction of a State
over the acts of men upon the high seas becomes circumscribed.
But it is only in the two cases, where the individual accused is himself a citizen ... or
where the property upon which the individual was found perpetrating a wrong was
properly recognized as American . . . that the United States can make a law which would
be binding upon all citizens or which could be enforced by courts of justice; and I do not
hesitate to say, after something of mature consideration, that if the Congress of the
United States, in its honorable zeal for the repression of a grievous crime against
mankind, were to call upon the courts of justice to extend the jurisdiction of the United
States beyond the limits I have indicated, it would be the duty of courts of justice to
decline the jurisdiction so conferred.
That the offence is called in our particular statute piracy, does not vary the legal
position. . . . Piracy is essentially an offence against the universal law of the sea. It
assumes that the individual has thrown off his allegiance to mankind. He is the enemy of
all who meet him. The slave trade, however horrible it may be, is not within that
category. 115
Under this charge, Darnaud was acquitted of "piracy." 116 The attempt of
Justice Joseph Story to structure the American courts' approach to the
international legal order in such a way as to enforce against foreigners
whatever assertion of jurisdiction the Congress might see fit to make for
policy reasons failed. The logic espoused by Judge Kane seems clear; it is
based upon the existence of an international legal order that withholds from
states the power to legislate with regard to the acts of foreigners abroad
except in very narrowly prescribed cases. Participation in the slave trade,
because consistent with the international legal order, even if horrible and
possibly sinful, even if a violation of the law of nations in the Zouche-
Blackstone-Story sense of violating the municipal laws of all states, was not
inconsistent with the international legal order; indeed it was part of the trade
between states that is a reason for the existence of the international legal
order. Thus, to Kane it must have seemed that Castlereagh was wrong at
Aix-la-Chapelle and France and Sir William Scott were right: 117 The law of
150 The Law of Piracy
nations as it was reflected in the international law of the mid-nineteenth
century was not conceived as the natural law evidenced by the concurrence of
municipal legislation of all "civilized" states; it was the positive law, with no
moral component divorced from the assent of states, evidenced by treaty or
practice which in turn depended on political evaluations of the desirability of
concluding the treaty or engaging in the practice.
It is perhaps worth noting explicitly that the Zouche-Blackstone idea
that the law of nations, in the sense of the natural law evidenced by
unanimity in the municipal laws of "civilized" states on some particular
point, was part of "international law" in the sense of the law between
states, seems to have bred more confusion than clarity in the minds of the
naturalist jurists of the early 19th century. To legislators grappling with the
practical problem of making rules for the governance of their societies, the
idea that their rules, when coinciding with the equivalent rules of similar
societies, represented the expression of some higher law and not of political
choice was, to say the least, strange. They knew the argument and
compromise that had been involved in drafting the rules and enacting them
(through whatever political process). They also knew that what seems an
incomplete trend or evidence of imperfect understanding of the underlying
rules to a judge, teacher or other outsider, was more likely the balance of
the political forces whose cooperation was necessary to the consensus
process of legislation; that "imperfection" or "incompleteness" in
expressing the "natural law" was evidence of the misperception of the
outsider as to the "natural" rule, because the arguments that had resulted in
the "imperfection" or "incompleteness" were sufficiently compelling, and
reflective of important social interests, to be as "natural" as the arguments
supporting a more sweeping rule. The evidence of the American experience
of this time seems to have meshed with the evidence of British experience
of the late 17th century and of this time as well, that rules of "international
law" cannot be made binding on other states by the act of legislation or
even judicial pronouncements of a single state or even a large majority of
states. Thus, while a positivist approach to assertions of national
interpretations of the law and its utility to express national policy even in
international affairs resulted in legislation that used the word "piracy" in a
sense desired by the national law-makers and in the hope of results in the
international legal order, 118 that hope was futile. The structure of the
international order, giving to each state the same powers of interpretation,
make national legislation incapable of expressing "natural law" in a sense
persuasive on others who do not share the identical perception of the
"natural law." The argument by Blackstone, Story, Castlereagh 119 and
others is thus circular; it rests on the a priori acceptance of the rule by the
state seeking to be bound to it by international law arguments based on
principles already found unpersuasive to its municipal legislature.
United States Law 151
This is not to say that the naturalist argument regarding underlying
principles is wholly mistaken, only that its application to specifics can never
be presumed. 120 The 1945 Statute of the International Court of Justice, which
is binding on all members of the United Nations and a few other states as
treaty law even if not codifying generally accepted formulae, requires the
Court to apply "general principles of law recognized by civilized nations" as
part of the body of rules contained in international law. 121 Whether those
"general principles" have anything to do with "piracy, "and whether, if they
do, they can be applied to anything else, remains doubtful in the light of the
experience of the United States in trying to use them to expand the concept to
cover the foreign slave trade and felonies other than "robbery" and in areas
other than the high seas outside the territorially-based assertions of
jurisdiction of any state, and to persons and incidents not related in legally
significant ways to the state seeking to apply its law (or its conception of the
international law) of "piracy."
Jurisdiction Reexamined. Story's reasoning in the La Jeune Eugenie,
declining to exercise over a wholly French vessel the American jurisdiction
asserted in the Act of 1820, 122 seems to reflect the policy underlying the
distribution of legal powers, the jurisdiction of national courts and the
problem of "standing" inherent in the international legal order. It is thus
more compelling as a demonstration of the limits of "natural law" than of the
substantive law regarding the slave trade that Story felt truly reflected
"natural law," and which he declined to apply despite asserting a universal
American jurisdiction both to legislate and to enforce American "universal"
law against foreigners abroad. As Story's reasoning demonstrates, it is
possible to assert this distribution of legal powers in the international legal
order to rest on either natural law growing out of the structure of
international society, or positive law — the convenience of the enforcing state
in a particular situation — thus it is not necessary to resolve the jurisprudential
disputes as to the best model to posit for an understanding of the international
legal order. The policy argument given by Story will be very strong in any
particular case. It, in turn, rests on unstated perceptions as to the convenience
of the state system and narrower conceptions of territorial jurisdiction than
he was willing to admit openly.
If this is so, then the "crime of piracy, as defined by the law of nations"
seems to be simply the extension of municipal laws relating to crimes labeled
"piracy" for historical reasons, largely resting on confusion and polemics,
and related to the international legal order by another confusion between the
"law of nations" and the "law between states" the former being merely a
collection of the similar municipal laws of states which regard themselves as
the sole members of the system. The similarities seem to rest on policy reasons
related to the needs of commerce, not on underlying natural moral and legal
principles. Indeed, ironically, the underlying principles seem more nearly
152 The Law of Piracy
related to the unwritten constitutional order of international society, and
make the conception of a substantive "natural law" valid for all states because
reflecting immutable substantive principles, inconsistent with the system and
an impediment to a clear understanding of it. Story himself seems to have
reached this conclusion by 1834. 123
In some other respects, what Story could not win by traditional legal
argument based on natural law, he and his supporters were able to win briefly
through changes in the positive law; by the blend of law, morality and policy
in legislation by the United States Congress. The Act of 15 May 1820, 124 in
addition to extending indefinitely section 5 of the Act of 1819, 125 and
otherwise regulating the exercise of the powers of the President to authorize
captures at sea, contained a new provision codifying Story's view as to the
territorial reach of American Admiralty jurisdiction:
Sec. 3. . . . That if any person shall, upon the high seas, or in any open roadstead, or in
any haven, basin or bay, or in any river where the sea ebbs and flows, 126 commit the
crime of robbery, in or upon any ship or vessel, or upon any of the ship's company of any
ship or vessel, or the lading thereof, such person shall be judged to be a pirate; . . . And if
any person engaged in any piratical cruise or enterprise, or being of the crew or ship's
company of any piratical ship or vessel, shall land from such ship or vessel, and, on shore
commit robbery, such person shall be adjudged a pirate. 127
The possibility of a clash of jurisdictions was noted with a proviso:
Provided, that nothing in this section contained shall be construed to deprive any
particular state of its jurisdiction over such offences, when committed within the body
of a county [sic; this was obviously copied from the statute of 1536], or authorize the
courts of the United States to try any such offenders, after conviction or acquittance
[acquittal], for the same offence, in a state court.
But the references to counties and to state courts makes it likely that what
was in the mind of the Congress was not a clash between the United States and
foreign countries, but between Federal and state authorities within the United
States alone. On the other hand, the United States had not authorized any courts
under the Constitution, except military tribunals and counsular courts, to hear
criminal cases arising outside of the territorial jurisdiction of the United States
and the high seas. 128 Thus the degree to which the territorial view of Admiralty
jurisdiction, urged by Story and evident in many of the writings and cases noted
above, was actually adopted by the Congress is doubtful.
As was pointed out with regard to the positivism of Gentili, where
concepts of natural law and inherent limits to sovereignty are not regarded as
persuasive, policy arguments frequently are persuasive to reach the same
results. It is frequently better to refrain than to exercise an assertable
jurisdiction when inordinate expenses must be borne to transport witnesses
and inordinate delays are involved when a court cannot be set up in the area of
the acts over which a state seeks to apply its law. The British had solved the
problem in 1700 by authorizing the establishment of colonial tribunals to hear
United States Law 153
"piracy" cases. In 1820 the United States did not have the same resources or
distant interests involving sea power that the British felt. And even the most
assertive positivist in the administration or the Congress at that time would
not have urged that America establish a land-based court in territory ruled by
a foreign sovereign with his own judicial system; to supersede, or even
supplement a foreign judicial system and apply American law in a foreign
sovereign's territory were major steps involving treaties 129 or the extension of
national sovereignty, colonization or imperial expansion, in disregard of local
authority. 130 The diplomatic and military consequences of such a policy made
it inadvisable to apply it in distant territory at that time. 131
The practical restraints the international legal order, with its emphasis on
territory as the prerequisite for enforcement jurisdiction, fixes upon the legal
powers of states to legislate effectively within that order through arguments
based on the natural law evidenced by coinciding municipal legislation, are
implicit in the leading American text of the period. Chancellor James Kent o^
New York in the first edition of his Commentaries on American Law (1826) 132
regarded the public law of nations as "enforced by the censures of the press,
and by the moral influence of those great masters of public law, who are
consulted by all nations as oracles of wisdom" and ultimately by "the penal
consequences of reproach and disgrace" and the hazards of "open and solemn
war by the injured party. " But offenses that can be committed by individuals
he considered as enforced by the "sanctions of municipal law," specifying not
individual acts of unneutral service when the state is seeking to maintain
neutrality, or similar acts violative of national policy alone, but "violations of
safe conduct, infringement of the rights of ambassadors, and piracy." 133
"Piracy" he defined merely as robbery, or a forcible depredation on the high
seas, without lawful authority, and done "animofurandi" citing U.S. v. Smith
as authority for the assertion 134 and he asserted with Story that "There can be
no doubt of the right of Congress to pass laws punishing pirates, though they
may be foreigners, and may have committed no particular offence against the
United States." 135 But he applied that broad language only to cases noted
above in which the "pirate" had lost all his national character by acting "in
defiance of all law, and acknowledging obedience to no government or fiat
whatsoever. " The Acts of 1790 and 1819 as continued and expanded in 1820 he
noted:
Did not apply to offences committed against the particular sovereignty of a foreign
power; or to murder or robbery committed in a vessel belonging at the time, in fact as
well as in right, to the subject of a foreign state, and, in virtue of such property, subject
at the time to its control. But it [the Act of 1790] applied to offences committed against
all nations, by persons who, by common consent, were equally amenable to the laws of
all nations. 136
He thus repeated the compromise on the Supreme Court noted by
Wheaton, that allowed the wide assertion of jurisdiction urged by Story to
154 The Law of Piracy
survive alongside a restrictive interpretation of the statutes under which that
jurisdiction was interpreted to avoid a clash with foreign jurisdictions. And
he emphasized the restriction by referring to the "particular sovereignty" of
other states as a limit to American assertions, and to "common consent" as the
basis for a wider exercise of jurisdiction if it were ever to be attempted.
Foreign Commissions and Unrecognized Belligerents 137
The Statutes. The historical experience of the United States with
unrecognized belligerents being classified as "pirates" dates back to 1777,
with the licensees of the Continental Congress itself so classified by British
statute. 138 Those statutes envisaged the detention of American privateers as
"pirates," with a possibility of criminal trial at Executive discretion in
England. There appear to have been no prosecutions for "piracy" as a crime
either under the law of England or under international law growing out of the
licensed activities of American privateers during the War. American
privateers conducting captured vessels into neutral ports during those years
were either welcomed on terms of equality with other belligerent vessels or
turned away after British protest. The British authorized reprisals against
Dutch shipping in retaliation for the Dutch refusing to deny port facilities to
American privateers; but there seems to be no instance of a licensed American
privateer actually being treated as a criminal. 139 In one instance British
correspondence protested host state favors to an American naval officer as a
breach of international obligations related to "piracy," but the context is
political and the legal argument seems obscure. 140
The use of the word "pirate" in what appears to have been a municipal
criminal or administrative law context, but actually as a mere pejorative, and as a
legal basis in either British municipal law or international law (certainly
municipal law; international law to the extent the privateers licensed by the
Continental Congress were conceived to be exercising belligerent rights) for
holding political prisoners without calling them prisoners of war, was thus
familiar to the statesmen of the United States from the moment of independence.
The United States, as a new state in the international order, preferred not to
use the legal word in this way but did use it as a political pejorative without legal
implications. Among the earliest treaties of the United States under the
Constitution of 1787, aside from the Jay Treaty and Pinckney 's Treaty with Great
Britain and Spain respectively, 141 were the treaties with the "states" of the North
African Mediterranean littoral, the Barbary states. 142 The word "pirate" was
often used in the political rhetoric surrounding the so-called War with the
Barbary Pirates, but in the actual conduct of hostilities, the normal laws of war
and diplomatic and military intercourse were followed; the word seems to have
reflected popular emotion only, not any legal classification. 143
The American statute of 1790 144 contained a provision dealing with
privateering done under color of a foreign commission. It was restricted in
terms to American citizens taking such commissions, and thus rested its
United States Law 155
"standing" on the nationality of the accused "pirates." It separated
conceptually the problem of commissions from the problems of "piracy"
unauthorized by any public authority, thus for a full understanding of the
American attitude towards depredations done by foreigners also under color
of a foreign commission it is necessary to set it forth here:
9. . . . That if any citizen shall commit any piracy or robbery aforesaid, or any act of
hostility against the United States, or any citizen thereof, upon the high sea, under
colour of any commission from any foreign prince, or state, or on pretence of authority
from any person, such offender shall, notwithstanding the pretence of any such
authority, be deemed, adjudged and taken to be a pirate, felon, and robber, and on being
thereof convicted shall suffer death. 145
This provision was left unchanged by the revisions of 1819 and 1820. The
principle was expanded in 1847 during the war between the United States and
Mexico of 1846-1848 through which the United States acquired California,
New Mexico and Arizona, and ended Mexican claims to Texas. At that time
the United States, as a matter of municipal law, extended the treatment as
"pirates" even to foreigners acting under valid commissions by foreign
governments if those commissions were inconsistent with the provisions of a
treaty to which the United States is a party:
That any subject or citizen of any foreign State, who shall be found and taken on the sea,
making war upon the United States, or cruising against the vessels and property thereof,
or the citizens of the same, contrary to the provisions of any treaty existing between the
United States and the State of which such person is a citizen or subject, when by such
treaty such acts of such persons are declared to be piracy, may be arraigned, tried,
convicted, and punished before any circuit court of the United States ... in the same
manner as other persons charged with piracy. 146
The statute of 1790 and its continuations apply only to Americans and, after
1847, some foreigners acting against the United States. Its provisions do not
reflect any acknowledged underlying customary law. A British assertion that
Americans serving on French privateers in 1794 were "pirates " was denied by
the United States; 147 similarly, a French decree of 6 June 1803 classifying as a
"pirate" vessel any privateer sailing against France two-thirds of whose crew
were not subjects or citizens of a country at war with France, was considered
by the United States to be inconsistent with the law of nations. 148 The question
of Americans acting under foreign commissions against foreigners was
answered as far as the United States was concerned by the Neutrality Act of 5
June 1794 149 under which various unneutral acts by individuals within the
territory of the United States were forbidden, including the fitting out of
privateers to cruise against foreign powers. But only acts within the
territorial jurisdiction of the United States were affected as it was apparently
the American policy to regard mercenary activity by Americans, including
privateering under foreign license (which could be very profitable indeed to
the successful privateer), to be neither forbidden by any conception of the law
156 The Law of Piracy
of nations applicable to individuals nor any violation of American neutrality
under international law as applicable between states. 150
By 1854 it appears that even the British had accepted the American position
that a regularly issued commission would remove the charge of "piracy"
from nationals acting under third country commissions against yet other
countries, and such a situation would not violate the neutrality of the
privateers' own state if that state's territory or its own affirmative public
policy were not involved. 151 Of course, municipal law or treaty could commit
a state to a different policy. In addition to various policy arguments, such as
the possibility that Great Britain might some day want to be able to employ
American seamen in British privateers sailing against a third power, the
Americans argued successfully that "By the law of nations, as expounded
both in British and American courts, a commission to a privateer, regularly
issued by a belligerent nation, protects both the captain and the crew from
punishment as pirates." 152
The Early American Experience. There is no American statute relating
expressly to foreigners sailing under foreign commissions other than these.
Thus, a legal gap was left with regard to foreigners sailing under commissions
of foreign authorities who are not accepted by the political branches of the
government of the United States as the representatives of foreign states. To
the extent those foreign privateers act only against foreign shipping, not only
would the United States lack standing to try them for "piracy" under any
definition, but even if the jurisdictional problem were regarded as solved by
calling them stateless under the approach taken in U.S. v. Klintock, 153 the lack
otanimofurandi, an essential element of the crime of "robbery," would seem to
take the privateers with doubtful license out of the conception of "piracy " as
it evolved with regard to the "classical" application of Admiralty jurisdiction
to hang foreigners acting abroad for violations of a municipal law relating to
property rights on board ships of the prosecuting state. A different conception
is involved relating less to the municipal law of "robbery " or "murder, " and
more to the international law of war involving unrecognized political
societies or groups forming themselves into governments but not yet in
control of all the levers of the political society they claim to govern. The
conception relates in the statutes to Americans engaging in "hostility"
against the United States, or foreigners "making war" on the United States in
disregard of treaty obligations of their own state. The uses of the word
"piracy" in this very different context than the "robbery within the
jurisdiction of the Admiral" definition, caused a confusion of thought that
persists to today.
Ironically, the first form in which the key questions arose was with regard
to commissions issued by the United States itself in 1798 authorizing
privateers to cruise against French shipping. 154 Under the Constitution of
1787, the American Congress has the legal power in the United States "To
United States Law 157
declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water." 155 On 7 July 1798 the Congress
legislated "That the United States are of right freed and exonerated from the
stipulations of the treaties . . . heretofore concluded between the United
States and France." 156 Two days later the Congress authorized the President
to "instruct the commanders of the public armed vessels . . . employed in the
service of the United States, to subdue, seize and take any armed French
vessel" and to grant equivalent authority through "special commissions" to
the owners of "private armed ships and vessels of the United States. " 157 Since
there was no Declaration of War, the legal question was posed as to whether
American commissioners acting under commission in the public interest, and
not as licensed individuals in a "reprisal war," 158 could claim the rights of
lawful combatants and whether Frenchmen captured by American privateers
were to be treated as soldiers under the laws of war. In addition, the question
arose as to whether an American taking a French commission or aiding the
French was guilty of "treason" or of "piracy " under the "hostility" provision
of section 9 of the Act of 1790. The Attorney General, Charles Lee, addressed
the questions in an opinion sent to the Secretary of State, Timothy Pickering,
on 21 August 1798:
Sir: Having taken into consideration the acts o( the French republic relative to the
United States, and the laws of Congress passed at the last session, it is my opinion that
there exists not only an actual [sic] maritime war between France and the United States,
but a maritime war authorized [sic] by both nations. Consequently, France is our enemy;
and to aid, assist, and abet that nation in her maritime warfare, will be treason in a
citizen or any other person within the United States not commissioned under France.
But in a French subject, commissioned by France, acting openly according to his
commission, such assistance will be hostility . . . [he] must be treated according to the
laws of war. 159
The Latin American Wars for Independence. It being more or less
established, thus, that as far as the United States was concerned, the facts
should determine the legal classifications pertinent to any particular
situation, and that the political act of "recognition" through the formal
attaching of classifications like "war" to a factual situation was a clarifying
and at times determinative step, but that the failure to make a formal
"declaration" was not determinative, the courts found themselves in some
difficulty during the wars for independence of the Spanish colonies in the
Americas.
The Romp of Baltimore sailed under a commission from the revolutionary
government of Buenos Ayres and, as the Santafecino, cruised successfully
against Spanish shipping. The laws of maritime warfare were fully observed.
Available records do not indicate why the terms of Pinckney's Treaty with
Spain were not applied to make the American involvement in the voyage of
the Romp equivalent to "piracy," 160 but when the crew was arrested on 1817
158 The Law of Piracy
and charged with "piracy" Chief Justice Marshall, sitting as a Circuit Judge
in Virginia, found the major issue to be whether the commission from Buenos
Ayres was significant legally in the absence of "recognition" by the political
branches of the American government, and whether, if not, the "robberies"
against Spain committed by the Romp's crew fell within section 8 of the 1790
statutory definition of "piracy:"
The commissions should go to the jury, merely as papers found on board the vessel. But
on the main question . . . that a nation became independent from its declaration of
independence, only as respects its own government. . . . That before it could be
considered independent by the judiciary of foreign nations, it was necessary that its
independence should be recognized by the executive authority of those nations. That as
our executive had never recognized the independence of Buenos Ayres, it was not
competent to the court to pronounce its independence. That, therefore . . . the seals
attached to the commissions in question prove nothing. 161
As to the law of "piracy" that would apply if the commissions were found
by the jury not to endow the crew with an immunity from the law of "piracy "
for the purposes of the case, Marshall reviewed section 8 of the Act of 1790
and concluded in the light of a split of opinion between Justices Bushrod
Washington and William Johnson that the law is "doubtful" as to whether to
be "piracy" the depredation must be one that would be punishable by death if
committed on land. 162 With this confusing instruction he sent the case to the
jury, which took only ten minutes to return a verdict of not guilty.
The legal questions were given a much more elaborate treatment about a
year later in U.S. v. Palmer et al. As to the substance of the question as to
whether the phrase "punishable by death" in the Act of 1790 section 8
modified the word "piracy" as well as the phrase "any other offences,"
Johnson, in his dissent to U.S. v. Palmer, took the opportunity to reiterate his
views conscientiously opposed to capital punishment. 163 He also reiterated his
interpretation of the Constitution to withhold from the Congress the power
to make that "piracy " which by the law of nations is not "piracy" in order to
give jurisdiction to its own courts over such offenses 164 and went much further
with regard to the question of commissions by unrecognized public
authorities:
When open war exists between a nation and its subjects, the subjects of the revolted
country are no more liable to be punished as pirates, than the subjects who adhere to
their allegiance. . . . The proof of a commission is not necessary to exempt an individual
serving aboard a ship engaged in the war, because any ship of a belligerent may capture
an enemy; and whether acting under a commission or not, is an immaterial question as to
third persons: he must answer that to his own government. 165
It is not clear whether the majority agreed with Johnson on these last
points; Chief Justice Marshall exercised his usual genius for finding words
that would satisfy all parties and resolve the case without actually taking a
position. As noted above, the majority agreed with Marshall that acts by
United States Law 159
foreigners exclusively against foreign individuals or vessels "is not a piracy
within the true intent and meaning of the act" of 1790 section 8. 166
But what of Amercan defendants and foreigners who take American
property at sea under a doubtful foreign commission? As to these, Marshall
wrote:
[I]f the government [of the United States] remains neutral, and recognizes the existence
of a civil war, its courts cannot consider as criminal those acts of hostility which war
authorizes, and which the new government may direct against its enemy. . . . This would
transcend the limits prescribed to the judicial department. 167
This reiteration of the position taken so futilely a few months before in
U.S. v. Hutchings at the Circuit Court level, was modified and expanded
somewhat when Marshall drafted the "per curiam" Certificate to take
account of Johnson's views and conclude the case by giving guidance for the
future. After holding that acts by foreigners exclusively against other
foreigners are not "piracy" within the sense of section 8 of the Act of 1790
(not mentioning whether "piracy" at general international law), Marshall
wrote for the Court:
[W]hen a civil war rages in a foreign nation, one part of which separates itself from the
old established government, and erects itself into a distinct government, the courts of
the union must view such newly constituted government as it is viewed by the legislative
and executive departments of the government of the United States. If the government of
the union remains neutral, but recognizes the existence of a civil war, the courts of the
union cannot consider as criminal those acts of hostility, which war authorizes, and
which the new government directs against its enemy. 168
As in U.S. v. Hutchings, Marshall (carrying the whole Court with him)
concluded that the seal on a purported commission may be proved by such
evidence as the circumstances permit even if there is no clear "recognition"
of the seal-granting authority by the political branches of government, and if
it cannot be proved, then the defendant may nonetheless otherwise prove
himself to be in government service.
This opinion did two important things from the point of view of this part of
the analysis: (1) It impliedly applied the municipal law "robbery" conception
to the international law concept of "piracy" by allowing that any
commission, or even mere government service without a commission, could
negative the animus furandi necessary for a "piracy" conviction at American
law; and (2) while repeating the subservience of the judicial branch to the
other two branches of the American Federal government, it allowedjuries to
construe the silence of those other branches as consent to whatever the jury
might find to be the legal classifications for the purposes of the particular case
best flowing from the facts introduced in evidence before the court. Thus,
while allowing the political departments of government to "recognize" as
facts for the entire government a labeling system that might bear no
relationship to the labels that a jury objectively viewing the evidence might
160 The Law of Piracy
find, the legal system was not to be crippled by the inability of the political
officers of government to make up their minds as to the labels that would do
most to advance American policy interests. They could continue to be as
positivist as they pleased, but the law using the traditional tools of naturalism,
reason and fundamental principle derived from conscience and experience,
could act when policy did not intervene. The result of this approach was to
separate the law of "piracy" from the law of war, which was conceived to
apply to all public contentions of arms whether or not declared and whether
or not all parties were "recognized" as states or governments. 169
In the light of the history of the American revolution and the policy
followed during the undeclared war with France, this was hardly
earthshaking, but it caused considerable confusion to the political arms,
which felt they might be losing control of reality by permitting the judiciary
to affix legal labels on the basis of evidence instead of on the basis of policy as
examined by the political representatives of the Union. On 6 November 1818,
shortly after the decision in U.S. v. Palmer et al. was announced, the Attorney
General, William Wirt, responded to a request for legal guidance from Elias
Glenn, the Federal District Attorney for Baltimore, in a case involving
American privateers sailing under licenses issued by the organization headed
by Jose Gervasio Artigas, the leader of the Uruguayan independence
movement involved in struggles against the governments of Buenos Ayres
and Portugal (which was still sovereign in Brazil). The easy answer might
have been to rest not on the law of "piracy, " but on the American Neutrality
Act of 1794 forbidding American nationals taking foreign colors while in the
United States. 170 But, this statute had only a very narrow territorial
application, did not apply to American nationals abroad, and was aimed at
preserving the neutrality of the United States by forbidding American
territory to be used for foreign enlistments or fitting out foreign warships. The
only reference to "piracy" in the act is in its section 9: "[NJothing in the
foregoing act shall be construed to prevent the prosecution or punishment of
treason, or any piracy defined by a treaty or other law of the United
States." 171 The strictly territorial applicability of this statute had been
assumed in 1796 by Attorney General Charles Lee, who had felt it necessary to
explain why it was necessary to preserve the neutrality of the United States
by controlling even the actions of foreign seamen; his language, while so
general that it might be read to apply to foreign seamen abroad, cannot have
been intended to apply so broadly because the neutrality of the United States
cannot have been conceived to have been affected by that, and it is neutrality
that is the subject:
Mariners may be said to be citizens of the world; and it is usual for them, of all countries,
to serve on board of any merchant ship that will take them onto pay. ... In the acts of
Congress passed for punishment of crimes against the United States, it is observable that
mariners [sic] are forbidden to serve on a foreign ship of war, letter of marque, or
United States Law 161
privateer, but are left at liberty to serve on board a vessel merely engaged in
commerce.
172
To Wirt, the enlistment under Artigas's licenses was illegal under the act of
1794, but if not, then it must have been "piracy " under the act of 1790, section
9. Since it is not clear that the place of enlistment was within the territory of
the United States, it is not clear how the 1794 act was conceived to apply; and
since it is not clear that any victim of the privateers was American, it is hard
to see how section 9 of the act of 1790 could apply. But Wirt seems to have
been obsessed with his reading of U.S. v. Palmer et al. and U.S. v. Hutchings:
If the prisoners fail in showing that our government had admitted the existence of a civil
war between Artigas and Portugal, then the principles laid down in Palmer's case . . . can
have no application. 173
In that case, wrote Wirt, Marshall's position in the Romp case will result in a
conviction for "piracy." In case that argument seemed unconvincing, Wirt
found another by citing Vattel for the proposition that "the citizens of the
United States cannot mingle in that war, on this hypothesis, without being
guilty of piracy." But the citation given by Wirt does not support his
conclusion, since it forbids only foreign recruitment, not enlistment. 174
Wirt raised also the possibility that if all else failed the American
adventurers might be considered "pirates" under an unspecified Act of 1817.
The only Act that might fit his description provides:
That if any person shall, within the limits of the United States, fit out and arm, . . . any
such [sic; there is no prior referent in the statute to justify the "such"] ship or vessel, with
intent that such ship or vessel shall be employed in the service of any foreign prince or
state, or any colony, district or people, to cruise or commit hostilities . . . against the
subjects, citizens, or property, of any prince or state, or of any colony, district or people
with whom the United States are at peace, every such person so offending shall, upon
conviction, be adjudged guilty of a high misdemeanor. 175
He seems to have overlooked the limiting language "within the limits of
the United States." 176 This series of confusions and citations to inapplicable
statutes and writings seems good evidence of the desire of the Administration
of President James Monroe to find a basis in the law for controlling the
adventures of Americans in the free-wheeling revolutionary days of the early
19th century Western Hemisphere without additional legislation. Indeed, it
seems likely that stronger legislation to limit North Americans' adventures in
Latin America could not have been passed through the Congress, in which
representatives from the less sedate members of American society had a
stronger voice than in the Virginia lawyer's appointed executive branch.
Marshall's ambiguities were not sufficient. The defendants were acquitted
without the jury leaving their seats, much to the fury of the Secretary of
State, John Quincy Adams, who felt the acquittal showed a lack of character
and ability in all those involved in the prosecution, including William Wirt,
and the judges in the case; William Pinckney, the defense counsel, was
162 The Law of Piracy
regarded by Chief Justice Marshall and Justice Joseph Story as the greatest
advocate to appear before them. 177
Examples of the practical difficulties of administering the terms of section
8 of the Act of 1790 were given above, 178 and the ambiguities were
substantially increased by the possibility that a foreign commission might
authorize the depredations observed or suspected by American licensees
seeking to capture "pirate" vessels. As early as 1813, Bushrod Washington
had tried unsuccessfully to use section 8 of the Act 179 to limit the excessive zeal
of foreign privateers. In U.S. v. Jones 180 a jury in Philadelphia had before it a
defendant from a vessel which had despoiled a Portuguese ship although,
according to Washington, in the political struggle giving rise to Jones's
foreign commission Portugal was a "neutral" as far as the United States was
concerned. The facts are not entirely clear, but the defendant appears to have
been an American, and Washington sought to have him bound by American
neutrality not to participate in a struggle among foreign public authorities.
No act of the Congress squarely touched the situation and Washington was in
the same dilemma Wirt would try to bluster his way out of in 1818.
Washington cited Jenkins, Molloy, Wooddeson and the Kidd case, 181 "which
latter case, " he wrote, "though decided at Common Law, is clearly bottomed
upon the principles of the maritime law of nations, with which the Common
Law in this respect agrees. " 182 The fact of the defendant's commission having
authorized depredations against Portuguese vessels Washington instructed
the jury to be irrelevant if the defendant "knows, or ought to know, the
orders to be illegal." The act of "piracy" under the Act was apparently not
necessarily either murder or robbery, but included any other act which would
have been punishable by death if committed on land. Washington seems to
have felt that this language of the Act of 1790 did not expand the international
law of "piracy" but codified it. 183 The verdict was for acquittal, apparently
on the basis of a possible mistaken identity between Jones and another
defendant named Hancock, and some serious question about the credibility of
some witnesses, 184 so possible legal errors in the charge were never appealed
to higher courts.
Evolution of the Labels. Among the "piracy" cases dealt with at the Supreme
Court level immediately after U.S. v. Smith in 1820 185 was U.S. v. Griffen and
Brailsford, in which the charge was applied to an American fitting out a vessel in
an American port to cruise under a foreign commission against a foreign power at
peace with the United States. The facts are not fully set out, but the Supreme
Court's decision was that even if the "piracy" laws did not apply, the Neutrality
laws of the United States did, 186 and the defendant concerned was "not protected
by a commission from a belligerent from punishment for any offence committed
by him against vessels of the United States." 187
Another was U.S. v. Holmes, 188 in which the Supreme Court avoided the
problem of having the judicial branch via a jury decision "recognize" the legal
United States Law 163
power of an unrecognized authority (Buenos Ayres again) to issue valid
commissions in disregard of the silence of the political branches of
government by applying the rule of U.S. v. Klintock. 189 Apparently it was
hoped that a jury would find that "the vessel . . . had, at the time of the
commission [of the offense], no real national character but was possessed and
held by pirates, or by persons not lawfully sailing under the flag, or entitled to
the protection of any government whatsoever." 190
It seems likely that the Supreme Court's difficulties dealing with these
cases reflected a deep jurisprudential split between Story and Washington,
the "naturalists," taking an expansive view of American jurisdiction to apply
an international law of "piracy" to foreigners who interfered with foreign
shipping in disregard of the legal order's normal demand for some "standing"
in the state whose judicial arm had the accused "pirates" before it, and the
"positivists," Johnson and Marshall, who insisted that, regardless of judges'
perceptions of abstract "justice, " "reason" or the presumed needs of society,
the jurisdiction of the American courts was restricted to such cases as the
Congress by legislation had given to it, and who interpreted the intention of
the Congress narrowly. The compromise as of 1820 was to allow jurisdiction
in those cases in which American "standing" could be supported in the usual
way plus those in which no other state in the international legal order could
assert a greater "standing" or legal interest. The limits of this approach were
reached when the defendants derived their authority for committing
depredations at sea from commissions issued by unrecognized foreign
officials; the "naturalists" wanted to consider those cases as within American
judicial purview, the "positivists" did not.
Wheaton in 1836 attempted to summarize the American view and ended
with the same split between broad assertion of jurisdiction and narrow
citation to practice that was the result of the jurisprudential division within
the Supreme Court. He wrote:
Pirates being the common enemies of all mankind, and all nations having an equal
interest in their apprehension and punishment, they may be lawfully captured on the
high seas by armed vessels o{ any particular state, and brought within its territorial
jurisdiction for trial in its tribunals. 191
This proposition, however, must be confined to piracy as defined by the law of nations,
and cannot be extended to offences which are made piracy by municipal legislation. . . .
The crimes of murder and robbery, committed by foreigners on board of a foreign
vessel, on the high seas, are not justiciable in the tribunals of another country than that to
which the vessel belongs; but if committed on board of a vessel not at the time belonging,
in fact as well as right, to any foreign power or its subjects, but in possession of a crew
acting in defiance of all laws, and acknowledging obedience to no flag whatsoever, these
crimes may be punished as piracy under the law of nations in the courts of any nation
having custody of the offenders. 192
The interplay between the American municipal law and the international
law of "piracy" as it might apply to political actors with commissions issued
by unrecognized governments at this period was illuminated in a case decided
164 The Law of Piracy
by a unanimous Supreme Court, opinion by Justice Johnson, in 1821. The Bello
Corrunes was a Spanish ship, captured in 1818 by an American sailing under
commission issued by the authorities of Buenos Ayres in a ship that had been
fitted out in the United States in violation of the Neutrality Act of 1794. 193 It ran
aground on Block Island, at the Eastern end of Long Island Sound, as a group of
its original crew seized control back from the American licensee of Buenos
Ayres. The claimants in an Admiralty proceeding thus were the original Spanish
owners, on the argument that the capture was "piracy " because the authorities
in Buenos Ayres had no legal power to issue a commission; the American
licensee, on the basis of his capture of the vessel; and the group of original
crewmembers, who claimed compensation as salvors for the original owners by
virtue of their recapture of the ship from "pirates" just before she ran aground.
The learned counsel before the Supreme Court included Daniel Webster and
Henry Wheaton for the Spanish owners and the "salvors" respectively, both
arguing the original seizure to have been "piracy" under article 14 of Pinckney 's
Treaty. 194 The decision was for the Spanish owners not on the ground of the
intervening capture having been "piracy," but on the ground of the American
captor having violated article 14 of the Treaty and the implementing statute of
14 June 1797, 195 and the salvors not having shown that they truly intended to
return the vessel to its Spanish owners rather than keep it for themselves. 196
Johnson indicated that the Treaty deeming to be "piracy" any American
privateering against Spain under license from any "Prince or State" with which
Spain shall be at war was problematical because Spain refused to consider its
troubles with Buenos Ayres to amount to "war," or Buenos Ayres to be the
government of a "state. " But, he said, whatever the problems in punishing these
acts as "piracy," they are clearly prohibited "and intended to be stamped with
the character of piracy . " 197
Meantime, as to the relationship between reality and legal labels, in the
1820 case of thejosefa Segunda m the Supreme Court reiterated in even stronger
terms the approach taken by Marshall in U.S. v. Palmer et al. The Josefa
Segunda, suspected of preparing to violate American laws regarding the slave
trade, was taken into an American port. Rival claimants for the vessel, in
addition to its captors, were its original Spanish owners and its immediate
possessors, who were the prize crew put aboard by a Venezuelan privateer.
To defeat the claim of these last, an argument was made that the Venezuelan
capturing vessel, the General Arismendi, was a "pirate" because the licensing
Venezuelan authorities had not been "recognized" by either Spain or the
United States as a government; that there was no "recognized" state of war
between Spain and any local authorities in Venezuela, and that even if all of
this were not so, the Josefa Segunda had never been formally taken before a
Venezuelan or any other prize court and therefore the legal Spanish title had
never been divested. Justice Henry Livingston for the Supreme Court brushed
aside all these formal legal arguments:
United States Law 165
Although not acknowledged by our government as an independent nation, it is well
known that open war exists between them [the Venezuelan local claimants to authority]
and his Catholic Majesty, in which the United States maintains strict neutrality. In this
state of things, this Court cannot but respect the belligerent rights of both parties; and
does not treat as pirates, the cruizers of either, so long as they act under, and within the
scope of their respective commissions. 199
The lack of actual condemnation before a prize court was considered
irrelevant because "a condemnation in a Prize Court of Venezuela was
inevitable." 200 This was judicial naturalism with a vengeance. "War" was
considered a legally significant "fact," not a legal status. American
"neutrality" appears also to have been treated as a "fact" despite the
appearance of status language. The reference to both the facts of war and of
American neutrality is immediately followed with a reference to "this state
of things" compelling legal results, the respect for the "belligerent rights of
both parties." If this was not a judicial "recognition" of the status of the
Venezuelan authorities as a "party" to a legal "war," it is hard to see what
would have been. It differs from a declaration by the Executive branch of the
American government only in that it is legally valid for the particular case
alone, not necessarily for other purposes or other cases. The case also shows
the decreasing importance of the forms of the law, the Prize court
proceedings, to the "naturalist" jurist. Until this time, the American capture
of the Josefa Segunda from a privateer prior to the legal title in the vessel and its
cargo being changed by some national Prize court would have had the same
legal result as a rescue from "pirates": Return of the vessel and cargo to its
legal owners and payment by them of "salvage" to the recaptors. Instead, the
result in the Josef a Segunda in practical terms was the defeat of Spanish title (by
presuming the result of a Venezuelan prize court — and presuming sufficient
legal status in the authorities of Venezuela to hold one) and the defeat of the
title claimed by the General Arismendi's owners and company by virtue of the
violation of the American anti-slave-trade laws in the territorial waters of
the United States, and thus the full value of the vessel and its cargo to the
American captors and government under those laws. Presumably this is the
same result the political branches of the American government would have
wanted to reach by the discretionary application of legal labels in a positivist
mode, and, by restricting the labels to the particular case, avoided
international political complications that handling by the executive branch
alone in diplomatic correspondence and administrative action would have
entailed. And yet, it seems apparent that to a large degree the Supreme Court
was exercising a political discretion, attaching labels not, perhaps, for strictly
policy reasons, as a self-conscious executive might have done, but finding
colorable reasons in a naturalist mode for attaching the labels most likely to be
welcomed by the administration of President Madison. Presumably they are
the same reasons that a positivist would have chosen in diplomatic
correspondence with Spain, although in that case tempered by apprehensions
166 The Law of Piracy
of reciprocal treatment by Spanish authorities with regard to American
vessels captured by America's enemies and not yet formally condemned, and
perhaps also by concern lest the Spanish authorities for their own policy
reasons "recognize" the international legal capacity of various American
Indian tribes or other groups which it was in the United States political
interest to suppress without reference to the rules of international law.
The Supreme Court itself did not maintain this exaggerated role in the
discretionary business of attaching legal labels relating to international
affairs. Once the political branches had "recognized" the war of indepen-
dence between Spain and its American colonies, and proclaimed United
States neutrality, the Court could skip back to its more comfortable role as a
judicial branch of government concerned with applying American municipal
law and only such international law as American municipal law required it to
apply. The case marking this retreat was the Santissima Trinidad and the St.
Andre. 201 Justice Story delivered the Court's unanimous opinion. The case
involved an American-built ship, the Independencia sold to James (Diego?)
Chaytor, of originally American, now nuclear, nationality, who held a
commission from the authorities of Buenos Ayres. Story wrote:
Buenos Ayres has not yet been acknowledged as a sovereign independent government by
the executive or legislature of the United States and, therefore, is not entitled to have
her ships of war recognized by our courts as national ships. We have, in former cases,
had occasion to express our opinion on this point. The government of the United States
has recognized the existence of a civil war between Spain and her colonies, and has
avowed a determination to remain neutral between the parties, and to allow to each the
same rights of . . . intercourse. Each party is, therefore, deemed by us a belligerent
nation, having, so far as concerns us, the sovereign rights of war, and entitled to be
respected in the exercise of those rights. 202
But the fitting out of the Independencia and a companion vessel in the United
States was a violation of the American Neutrality Act even if not a violation
of article 14 of Pinckney's Treaty 203 and Story argued that the American
Neutrality Act was but one country's legislation expressing the underlying
principles of all civilized countries (or, at least, all countries participating in
the international legal order as conceived by Story) and, therefore, was
simply part of the "law of nations" as conceived by Blackstone. Thus, while
rejecting the characterization of Chaytor as a "pirate" under article 14 o{
Pinckney's Treaty, and, by virtue of its public character rejecting the
characterization of the Independencia as a "pirate" vessel, he held that the
wrongful fitting out of the vessel in the United States "is a violation of the law
of nations, as well as of our own municipal laws" and that violation "infects
the captures subsequently made with the character of torts, and . . . requires
restitution." 204
As to the property rights adjudicated by a foreign prize court, Story and the
Supreme Court retreated considerably from the glib dismissal of the foreign
legal process evident in the presumption of condemnation and the giving of
United States Law 167
current effect to the merely anticipated legal action in thejosefa Segunda. The
Santissima Trinidadhad been captured by the Independencia and, with the consent
of all parties in the United States, had been sold there with the money
received replacing the vessel as the object of this Admiralty in rem proceeding.
During the pendency of the proceeding a Prize court in Buenos Ayres had in
fact condemned the vessel in absentia. The Supreme Court did not object to the
action of the Buenos Ayres court, ruling rather surprisingly that a belligerent
Prize court could legally act when a prize is physically elsewhere, in a neutral
port. But Story found two reasons why that Prize court action was
ineffective: (1) the vessel, having already been submitted to an Admiralty
court, it was no longer in the hands of the captor, so the res essential to an in rem
action was missing, (2) the property was already in the hands of an American
court, and the supervening action of a foreign court cannot oust the American
court of its jurisdiction: "It would be an attempt to exercise a sovereign
authority over the court having possession of the thing, and take from the
nation the right of vindicating its own justice and neutrality." 205 The first
reason seems inconsistent with the reasoning of the court in thejosefa Segunda,
where the act of the foreign prize court was anticipated and had never
occurred even during the American proceedings. The second goes to the
question of jurisdiction, not substance, and it is hard to see why an otherwise
valid legal act should be denied legal effect as a matter of national honor in an
Admiralty proceeding whose primary object is to evaluate conflicting claims
to property rights resting on foreign laws. Title to the vessel was restored to
its original Spanish owners, thus, although they did not in fact get their ship
back, they got the money that had replaced it in the action.
It seems clear that by taking a "naturalist" line, labeling "belligerency,"
and thus subject to the laws of war as they apply between states, the fighting
between a group seeking governmental authority and a group losing control
over the territory and population its constitution presumed that it ruled, on
the basis of "objective" facts rather than policy arguments, the Supreme
Court had made the label "piracy" irrelevant to questions arising out of the
acts of the licensees of unrecognized authorities. When the policy-making
branches of the American government agreed on the basis of its own
positivist, policy, arguments there was no difficulty. There is no case known
to have arisen over a conflict of labels between the courts and the policy-
making branches of the American government.
This evolution was probably helped by an equivalent evolution in England,
where Sir William Scott in 1819 had come to similar results in similar (but
very complex) circumstances. A British ship, the Hercules was commissioned
by Buenos Ayres to cruise against Spanish shipping. It had sold various
captured vessels without first submitting them to Prize court hearings in
Buenos Ayres. It was arrested by a British naval vessel for a claimed breach of
the revenue laws of Barbados and taken to the British Admiralty court in
168 The Law of Piracy
Antigua for adjudication among the captor seeking his share under a British
statute regarding naval captures to enforce revenue laws, the British owner
of the cargo, the British captain of the vessel for the vessel itself, the Spanish
Ambassador for the Spanish crown and owners of vessels and cargo plundered
by the Hercules, and a local attorney for the particular Spanish owners of
identifiable cargo plundered from a particular vessel. In the Antigua court,
the Navy captain won. The case was taken to England on appeal. Sir William
Scott found the Antigua Admiralty court had lacked jurisdiction under
British law to hear a case involving a breach of Barbados revenue laws, and
held for the British owner of the vessel and the bulk of its cargo. Immediately,
the Spanish Ambassador and the other Spanish claimants appealed again
claiming the Hercules to have been a "pirate" vessel when it captured their
property on the ground that the authorities in Buenos Ayres had no legal
power to issue a valid commission.
Scott's solution was to eliminate the law of "piracy" from the case and
restrict that law to the "criminal law" context which was only part of its
origin in English municipal law. The international law aspects of the case he
held to be questions of property law only, on which he proposed to hold
further hearings. As a result of this decision, the report notes, "Some further
proceedings were had . . ., but owing to a compromise which took place
between the several parties, it did not again come on for discussion." 206 In
reaching this result, Scott had some pertinent things to say about the law of
"piracy" as conceived in England at this time:
It is to be observed, likewise, that piracy has long ceased to be practiced in any
considerable extent. There is said to be a fashion in crimes; and piracy, at least in its
simple and original form, is no longer in vogue. Time was when the spirit of
buccaneering approached in some degree to the spirit of chivalry in point of adventure;
and the practice of it, particularly with respect to the commerce and navigation and
coasts of the Spanish American colonies, was thought to reflect no dishonour upon
distinguished Englishmen who engaged in it. . . . But whether the numerous fleets,
which in later times have been maintained by the European States, or the prevalence of
juster notions, and gentler manners, and commercial habits, have cleared the ocean of
this nuisance, the fact is certain, that the records of our own criminal Courts shew that
piracy is become a crime of rare occurrence, hardly visible for above a century past, but
in the solitary instances of a few obscure individuals. Pirates, in the ancient meaning of
the term, are literally rati nantes on the high seas. . . . Now, piracy is certainly not
considered as a felony at the common law . . . [I] will hear the case for restitution. 207
Thus, by relegating "piracy" to the strict criminal law context and
denying Common Law jurisdiction (by virtue of the Act of 1536, which Sir
William Scott regarded as excluding the Common Law courts and the normal
Admiralty courts from the cases of alleged "piracy" as crime), and viewing
the Admiralty courts as strict property courts in the same way as had been
done by Sir Julius Caesar some 150 years earlier, 208 the legal efficacy of the
word even to justify the preservation of property rights of the victims of
United States Law 169
illegal captures at sea was eliminated. His reasoning does not depend on the
lack of animo furandi, but on lack of jurisdiction and the fundamental
irrelevancy of the concept to the kind of case resulting from captures under
licenses issued by doubtful public authorities.
A similar approach was taken in 1826 by the American Supreme Court,
again unanimously and again under an opinion written by Justice Story, when
an American naval claimant sought to justify the taking of a Portuguese
merchant ship on the ground of its "piratical" behavior. While Story was
much less certain than Scott of the total obsolescence of the law of "piracy,"
he restricted the notion in the case of a foreign vessel, flying a flag to which it
is authorized, to when that vessel was engaged in "a private unauthorized
war. " Under this opinion, the Supreme Court decreed the return of the vessel
to its Portuguese owners, but released the American Navy captain from
liability for damages resulting from his wrongful, but reasonable, taking of
the vessel. 209
The same result followed a year later with an accompanying rationale
apparently even more strongly influenced by Scott's reasoning in the Hercules.
The Palmyra, sailing under a Spanish commission, had been taken on the high
seas by an American warship in 1822 after minor resistance. The Palmyra's
commission had been issued to a different vessel under a different commander,
and had expired; it had then been renewed and issued to the Palmyra by a
minor Spanish official of undocumented authority. Acting under that
commission, the Palmyra had plundered two French vessels, the Coquette and
the Jeune Eugenie. The American captor, Lieutenant Gregory, brought the
Palmyra in for adjudication, and the owners of the Palmyra sued him for
damages, claiming American interference with her voyage was unjustified
and the case, since it did not involve any American legal interest, beyond the
jurisdiction of American courts. Justice Story delivered the Supreme Court's
opinion. As to substance, the court held that the burden on the captor to prove
the Palmyra was a "pirate" vessel had not been borne, thus the acquittal of the
vessel and its crew was confirmed; mere irregularity in the ship's papers and
her excessive action against the two French vessels did not constitute
"piracy." 210 But the statute under which Lieutenant Gregory acted
authorized the President to instruct the commanders of American public
vessels to take only vessels with armed crews "which shall have attempted or
committed any piratical aggression, search, restraint, depredation or
seizure." 211 This use of "piratical" as an adjective caused obvious problems,
and Story pointed out that the case was not a criminal case, but an in rem
Admiralty proceeding in which the actual charge of "piracy" was not being
determined. The question thus resolved itself not to an issue of the law of
nations or the precise definition of "piracy, " but to a narrower question of the
intent of the Congress expressed in the statute. As to the international law,
Story concluded that "whatever may be the irregularities, . . . such
170 The Law of Piracy
commission . . . ought, in the courts of neutral nations, to be held a complete
protection against the imputation of general piracy." As to the in rem
proceeding, he went on, ' [TJaking the circumstances together, the Court
thinks that they presented, prima facie, a case of piratical aggression . . . within
the acts of Congress, open to explanation indeed . . . ; Lieutenant Gregory,
then, was justifiable in sending her in for adjudication, and has been guilty of
no wrong calling for compensation/' 212
Implicit in this holding was an extension of American jurisdiction to
foreign vessels suspected of "robbery at sea" against other foreign vessels
with no clear American interest in the transaction. Story's conception of
universal criminal law jurisdiction over "pirates" seems to have been adopted
by the Court as a whole. But again, the case was not presented squarely; it was
not in fact a criminal prosecution and the Palmyra was restored to its owners
despite the doubtful commission and the firmly stated view of the Court that
"Her [the Palmyra's] exercise of the right of search on these [French] vessels
was irregular and unjustifiable. " 213 Thus, the case can be interpreted to stand
for something very close to the opposite of what Story wanted. The assertion
of universal American police jurisdiction was not necessary for the result and
stands as mere dicta; and the need for some clear public authority to license
interference with navigation on the high sea was reduced to a mere need for
the semblance of such authority which a "neutral nation" could not properly
question. A relationship of belligerency between the flag state of the
"privateer" (or "pirate") and the victim would come close to making moot
the question of licenses. Story preserved the possibility that a "privateer"
might become a "pirate" even if acting only against vessels of an authority at
war with the authority issuing the commission, but the likelihood seems
remote of ever being able to present a convincing case on the point, and none
has been found.
On this last point, the trend of the law seems to have been against Story and
his attempt to extend the Supreme Court's assertions beyond the cases before
it to cover general policing jurisdiction. In 1829 a prosecution of an individual
of possible American nationality for "piracy against a French vessel on the
high seas" (apparently all the acts took place within a single vessel) resulted in
an acquittal "for want of jurisdiction" 214 under a charge that made the
nationality of the defendant the key to jurisdiction under the acts of 1790,
section 8, and 1820, section 3. Dallas, the prosecuting attorney for the United
States, agreed that there was no case against the defendant under a charge of
"piracy by the law of nations" because he was "indicted as a citizen of the
United States, for violating the laws of the United States." The District
Judge, Hopkinson, interpreted U.S. v. Palmer et al. to exclude from the scope
of the 1790 Act a crime by a foreigner on board a foreign vessel, and
interpreted U.S. v. Klintock to be consistent with that approach. The
extension of the statute to cover vessels of no flag in U.S. v. Holmes he
United States Law 171
construed as limited to that; it did not extend the act to cover vessels of a
known foreign flag. While the act of 1819 extended American jurisdiction to
cases of "piracy" at international law, Hopkinson argued the Congress "had
felt the force of the reasoning in Palmer's case; and may have doubted the
policy or propriety of extending their penal law beyond their own vessels,
leaving it to other nations to do the same with theirs." 215 He construed the
later acts of Congress to conform to this view, and concluded that acts wholly
within a foreign vessel "sailing under the flag of a foreign state, whose
authority is acknowledged, is not piracy within the true intent and meaning of
that [1820] act, and this court hath no cognizance to hear, try, determine and
punish the same." 216
Story had a final chance to try to establish the jurisdiction of United States
courts over foreigners acting solely against foreign shipping, and to expand
the definition of "piracy" to include more than robbery and murder across
jurisdictional lines at sea in 1844. The Brig Malek Adhelbound on a commercial
voyage from New York to California apparently attacked at least five other
vessels on the high sea. Two of the victims were British-owned and one
Portuguese (two were American-owned), but actual depredation and plunder
was alleged only with regard to the Portuguese vessel; the others were
apparently fired on only to sink them or harass them. Although the Malek
Adhel was in fact American-owned, and thus there need have been no doubt
regarding jurisdiction, Story construed the Act of 1819 as extended in 1820,
second section, which authorizes American warships to seize "any vessel or
boat . . . which shall have committed any piratical aggression . . . upon any
other vessel" to apply without regard to any issues of standing:
The policy as well as the words of the act equally extend to all armed vessels which
commit the unlawful acts specified therein. 217
As to the substance of the offense, Story interpreted the adjective "piratical"
to include:
The class of offences which pirates are in the habit of perpetrating, whether they do it
for purposes of plunder, or for purposes of hatred, revenge, or wanton abuse of
power. ... If he willfully sinks or destroys an innocent merchant ship, without any
other object than to gratify his lawless appetite for mischief, it is just as much a piratical
aggression, in the sense of the law of nations, and of the act of Congress, as if he did it
solely and exclusively for the sake of plunder, lucri causa. 21 *
Of course, the case did not involve "piracy" as such; it was not a criminal
proceeding but an in rem proceeding. The lower court decree condemning the
vessel as a punishment authorized by the statute, but releasing its cargo to the
innocent owners, was affirmed. The funds received from sale of the vessel
were used to indemnify the captors for their costs and charges; it appears that
the victims suffered no provable losses other than to their dignity. 219
The question of the validity of a commission issued by an unrecognized
authority arose again most poignantly when Texas declared its independence
172 The Law of Piracy
of Mexico. In 1836 an armed schooner, the Invincible, captured an American
brig, Pocket, bound for a Mexican port within the territory claimed by Texas.
The President (Andrew Jackson) asked Attorney General Benjamin Butler
whether the Invincible was a "pirate. " His answer was that under Section 9 of
the Act of 1790 Americans involved in the action of the Invincible would be
considered "pirates" by the law of the United States 220 (whatever their
situation under international law), but that the situation was different for
Texans (or rebelling Mexicans, as they legally were):
Where a civil war breaks out in a foreign nation, and part of such nation erect a distinct
and separate government, and the United States, though they do not acknowledge the
independence of the new government, do yet recognize the existence of a civil war, our
courts have uniformly regarded each party as a belligerent nation, in regard to acts done
jure belli. Such may be unlawful, when measured by the laws of nations or by treaty
stipulations; the individuals concerned in them may be treated as trespassers, and the
nation to which they belong may be held responsible by the United States; but the parties
concerned are not treated as pirates. 221
This approach, relieving the privateers of the unrecognized government of
Texas of the legal results of "piracy" on the basis of their deriving their
authority to act from the laws of war and their adherence to a public
organization engaged in that belligerency, was asserted to be valid despite the
fact that the interference with American shipping "would seem to be an
infraction of the treaty made in 1831 between the United States and the
United Mexican States, (of which Texas was then a constitutent [sic] part),
and there may be other reasons for doubting its legality as an act done in the
right of war." 222 The point was that once the relations between Mexico and
the Texas authorities were considered "belligerent," the law of war applied
and "piracy" was incompatible with belligerency as long as the "pirates"
were acting, not necessarily in full conformity with that law, but within that
system of law. They might be "war criminals," but not "pirates." That the
law of war applied between Mexico and the authorities of Texas was
determined by Attorney General Butler as a matter of strict positivist logic:
The existence of a civil war between the people of Texas and the authorities and the
people of the other Mexican States, was recognized by the President of the United States
at an early day in the month of November last. Official notice of this fact, and of the
President's intention to preserve the neutrality of the United States, was soon after
given to the Mexican government. 223
Attorney General Butler thus did not examine whether the facts viewed
objectively justified this American classification of relations between Texas
and the rest of Mexico, but accepted the classifications given by the policy
officers of a political branch, the executive, as the basis for his legal analysis.
This approach, relying on policy officers for the basic classification system,
and then interpreting the law of war to exclude "piracy" even for acts done in
excess of any commission or of the power of the belligerent to issue a
commission restricts the scope of the law of "piracy" essentially to two areas:
United States Law 173
(1) the municipal law relating to robbery within the jurisdiction of the
municipal Admiralty courts, and (2) whatever might remain of the original
Roman and Mediterranean conception of "piracy " as the behavior of states or
belligerents defined by a positive law system as outside the group governed
directly by the system.
This approach was not restricted to American executive branch officials. It
was taken by an Italian Umpire in 1863 rejecting a claim by American
investors (chiefly Cornelius Vanderbilt) against Costa Rica arising out of the
war of 1856 between that country and Nicaragua in which American
property in Nicaragua had been destroyed. In 1854 the government of
Nicaragua had been overthrown by adventurers led by William Walker, an
American. In the words of CDR Joseph Bertinatti, the Umpire in the later
arbitration, "The new government of Nicaragua . . ., though illegitimate and
piratical in its origin, . . . was in fact . . . the only government of that state. "^
Costa Rica intervened in 1856 to oust the "Rivas- Walker" government of
Nicaragua. For reasons that are not clear, the American investors then seem
to have convinced the Rivas- Walker Government to "nationalize" their
property in Nicaragua and hand it over to a second private company
organized under Nicaraguan law by the same investors. The property was
eventually destroyed by Costa Rica in the war. The American investors' legal
theory in the arbitration appears to have been that the Rivas-Walker
government was merely a group of "pirates," therefore incapable of
changing property rights; that the destruction of the Americans' property by
Costa Rica was therefore the destruction not of property legitimately used by
the Rivas-Walker people or those legal persons deriving title from them, but
of "neutral" property not legitimately the object of belligerent operations.
This attempt to manipulate the legal labels to insulate American investors
from the consequence of their own political activities in Nicaragua was
rejected by CDR Bertinatti on several grounds. One, that the Corporation
created under Nicaraguan law was Nicaraguan, and that the law of claims did
not permit foreign investors to assert the neutrality of their indirectly owned
property, is irrelevant to the current study. 225 Another, that "the fact, which
is more eloquent than words, shows that it was a public war and a regular war,
fought as such on both sides according to the civilized usages of warfare" and
that during the conflict the United States "recognized the Rivas-Walker
government, not only as belligerent, but also as the regular government of
Nicaragua" can be seen to defeat the use of the concept of "piracy " as a basis
for denying governmental competence to a de facto authority for the purpose
of private claims. 226 The importance of this approach will become apparent in
the next section.
The United States position regarding the use of the legal word and concept
of "piracy" in cases of political rising, based probably on the Revolutionary
war experience, reviewed above was absolutely to deny the propriety of the
174 The Law of Piracy
word. In 1838 Canadian and American raiders based in New York State
skirmished with British forces in Canada. In the correspondence that
followed, Mr. H.S. Fox, the British Minister in Washington, referred to
British-Canadians "defending the British territory from the unprovoked
attack of a band of British rebels and American pirates." 227 Daniel Webster,
the American Secretary of State, replied:
But whether the revolt be recent or long continued, they who join those concerned in it,
whatever may be their offence against their own country, or however they may be
treated, if taken with arms in their hands in the territory of the Government, against
which the standard of revolt is raised, cannot be denominated pirates, without departing
from all ordinary use of language in the definition of offences. 228
At the time, Great Britain in no way had "recognized" any degree of
belligerent status in the Canadian rebels, and the United States was entirely at
peace with Great Britain, referring to the problems in Canada as "civil
commotions," not "war" or "belligerency." 229
Civil War of 1861-1865. The entire question of the validity of a commission
issued by an unrecognized authority, and the possibility that the legal results
of "piracy " could be attached to an attack under color of such a commission,
even if not animo furandi, but instead animo belligerandi, arose in the United States
during the Civil War of 1861-1865, and the entire naturalist-positivist debate
broke out again. This time, there was an ironic twist in that the arguments
that were persuasive to the slavery-hating Story, who felt until the cases and
his work on conflict of laws theory convinced him otherwise, that the natural
law of property gave universal scope for American action against "piracy,"
now became attractive to the slavery-justifying Confederate States and their
sympathizers. From their point of view, the actual hostilities occurring
between the states of the southern Confederacy on the one hand and the rump
of the Union on the other should determine legal labels regardless of the
policy reasons that might be advanced in the north for preferring a different
set of labels. Their "naturalist" argument was that the substantive law arises
from facts and traditions that judges are able by training and empowered by
Constitutional law and tradition to find and declare; that under that law, the
actions of southern privateers and navy commissioners were public, not animo
furandi, and fit the labels involved in a legal status of belligerency; they were
entitled to be treated as prisoners of war if caught; their legal captures could
convey valid title after Prize court proceedings. To the unionist judges, the
political branches of the American government had the legal power to
determine the classifications of events, and the courts were bound to apply the
law growing out of those classifications. If the Confederate authorities were
unrecognized, their commissions were simply pieces of paper authorizing
nothing; depredations done under color of those commissions could thus be
classified "piracy."
United States Law 175
The question arose when President Lincoln declared a blockade of the
Southern states' ports on 19 and 27 April 1861. 230 The Proclamations of 19 and
27 April said respectively:
Now, therefore, I . . . deemed it advisable to set on foot a blockade of the ports within
the States aforesaid, in pursuance of the laws of the United States and of the law of
nations,
and
[A]n efficient blockade of the ports of those States will also be established. 231
The Congress did not act until 13 July 1861, when it "empowered" the
President "to close the port or ports of entry" in any customs collection
district of the United States 232 and "to declare that the inhabitants of [a] State,
or any section or part thereof, . . . are in a state of insurrection against the
United States" and that commerce unlicensed by him "shall cease and be
unlawful so long as such condition of hostility shall continue." 233 The issues
were the Constitutional power of the President to impose a blockade prior to
the empowering legislation by the Congress, whether the Presidential
or Congressional actions amounted to a "Declaration of War" within the
sense of the Constitution and international law, 234 and whether Confederate
States blockade runners and bearers of Confederate letters of marque were
"pirates" or otherwise violators of international law as well as being
criminals under the municipal law of the United States. 235
The Supreme Court was deeply split, not on sectional lines, but on lines of
legal theory. The "naturalist" position was taken by the 5-4 majority in The
Prize Cases. 236 Judge Robert Grier of Pennsylvania wrote the majority
opinion, 237 upholding the legal effect of the "blockade" on the ground that:
A blockade de facto actually existed, and was formally declared and notified by the
President. ... It is not the less a civil war, with belligerent parties in hostile array, but it
may be called an 'insurrection' by one side, and the insurgents be considered as rebels or
traitors. 238
Support for this position was found in the American treatment of licensees
of the unrecognized governments of rebelling Spanish colonies during the
1810s and 1820s. 239 Mocking the practical implications of the "positivist"
position by which all Confederate organization was a mere criminal
conspiracy against the laws of the Union, Grier pointed out the absurdity of
considering soldiers of the United States in the field to be "executioners"
chasing down those accused of "treason." Reciprocally, he pointed out that
the Confederates claimed belligerent rights at sea, and could not be heard
now to deny the belligerent rights of the Union as "unconstitutionallU" [sic]. 240
The result of this analysis was the conclusion that the status of the
unrecognized belligerent need not be determined, but that "the belligerent
party who claims to be sovereign may exercise both belligerent and sovereign
176 The Law of Piracy
rights." 241 Thus the "naturalist" approach was interpreted to allow
"belligerent rights" to the Union without limiting the "sovereign rights" of
the Union. The approach would give the same "belligerent rights" to the
Confederacy, but not necessarily "sovereign rights"; to compose the
Supreme Court majority it was not necessary to go that far and actually hold
that the Confederacy had "belligerent rights" equivalent to those of the
Union. 242 The result of this approach in practice was that a Virginia vessel
whose captain had not known the war had begun was condemned (The Brig
Amy Warwick); another Virginia vessel outward bound with cargo owned by
northerners was condemned but her cargo restored as not "enemy property"
(The Schooner Crenshaw); a British vessel was condemned on the ground that
she had violated the blockade order after notice, as a mere business risk — to
finish loading (The Barque Hiawatha); and a Mexican vessel was condemned
for knowingly entering a blockaded port (Biloxi, Mississippi) without a
permit (The Schooner Brilliante) . 243
The dissent by Justice Samuel Nelson of New York 244 took a straight
"positivist" line. Lincoln's declaration was not classifiable as a blockade jure
belli because there was no legal status of war, no Declaration of War by the
Congress, when he made his proclamations. They represented more a
municipal law closure of ports "in the nature of a blockade." The Act of
Congress on 13 July 1861 was legally sufficient to serve as a Declaration of
War under the Constitution, he said, but came too late to endow Lincoln's
proclamations with legal effect against the four vessels before the court.
According to the dissenters, the two vessels owned by "neutrals" should have
been released to their owners because a strictly internal proclamation with
strictly territorial application was not enough to bring the law of belligerent
prize into play. With regard to the ships owned by Americans from the
Confederate States, Nelson and the others in the narrow minority would have
released them on the ground that the President's proclamations exceeded his
Constitutional powers and were a legal nullity in the United States. 245
This split of legal thinking is evident throughout the American Civil War.
On 3 July 1861, after President Lincoln's Proclamations asserted some
belligerent rights in the Union and before the ambiguous legislation that the
Supreme Court majority of one could regard as equivalent to a Declaration of
War for the purpose of authorizing the President to begin a blockade
effective against both Americans and neutral foreigners, the Confederate
warship Sumter burned a Union merchant vessel, the Golden Rocket, triggering
a series of insurance claims. The policy covered hazards of "the sea, fire,
enemies, pirates, assailing thieves, restraints and detainments of all kings,
princes or people, of what nation or quality soever, barratry by the
master ..." and some other risks, but an additional provision amended all
that by making an exception to coverage if the vessel were subject to
"capture, seizure or detention ..." regardless of the other stipulations of
United States Law 177
the policy. The question was whether the burning by Confederate forces at a
time the Union authorities did not even unambiguously concede a status of
belligerency, much less a legal power in any Confederate authorities to
license depredations under the laws of war against Union shipping, fell within
the exception. In Dole v. New England Mutual Marine Ins. Co. 246 a
Massachusetts court held that the term "capture" as used in the policy could
describe the taking by the commissioner of one side in "an actually existing
state of war between it and the government of the United States," finding
support for this naturalist conclusion in the fact that the authority of the
Confederate leadership to conduct a war according to the international rules
had been recognized by "two of the leading nations of Europe" (Great
Britain and France). As an objective matter, therefore, it would be possible
for a jury to conclude that the "capture" exception applied, and the case was
ordered to trial. 247 The possibility that this way of handling the situation
might lead to an inconsistency between the classifications of the judicial
branch of the American Government and the other two branches of that
government did not seem to be considered seriously, apparently because the
case was viewed as a matter simply of interpreting an insurance contract, not
of interpreting the foreign relations or legal status of the United States against
the Confederate States, neither of whose public authorities in any guise was a
party to the suit.
A similar result came out of another case arising out of the same incident in
which a different insurance company was sued in Maine. In Dole v.
Merchants' Mutual Ins. Co. 248 the Court concluded that the most extreme
"positivist" position did nothing to require the Confederate commissioner to
be classified a "pirate," although that classification was not ruled out:
War is an existing fact, and not a legislative decree. Congress alone may have power to
'declare' it beforehand, and thus cause or commence it. But it may be initiated by other
nations, or by traitors; and then it exists, whether there is any declaration of it or not. . . .
But in a civil war, those who prosecute hostilities against the established government are
also traitors. And their acts are robbery or murder on the land, or piracy on the sea.
[With regard to the burning of the Golden Rocket], such a felonious and forcible taking on
the high seas was piratical and belligerent, and in either case was a capture and a seizure,
within the terms of the warranty [emphasis sic]. 249
The fact that the actions of the political branches of government were
ambiguous, indicating differing views as to the legal relations that applied
between the Union and the Confederacy in the minds of all concerned, was
bluntly recognized in another case arising out of the maritime depredations of
a Confederate raider, the Jeff Davis . In Fifield V. Insurance Co. of State of
Pennsylvania, 250 Judge Woodward wrote:
I suppose that any government, however violent and wrongful its origin, which is in the
actual exercise of sovereignty over a territory and people large enough for a nation,
must be considered as a government de facto. 251
178 The Law of Piracy
He then reviewed the two views of secession that had split the lawyers of the
political arms of government and concluded that:
[I]t would be very difficult so to generalize the various, discrepant, and sometimes
inconsistent measures that have been taken against the rebellion as to enable us to
declare whether the President and Congress regard the seceded states within or without
the Union. 252
The instant case presented a perfect example, in that the crew of the Jeff Davis
had already been convicted of "piracy" by the judiciary, but the President,
"after the conviction of the crew of the Jeff Davis for piracy . . . interposed
and restored them to the authorities of the Confederate States.*' He did not
pardon them; "he treated them as public enemies, and thus, . . . recognized
the belligerent rights of the power that sent them forth. . . . " 253 The court
concluded that the capture was "belligerent" and not "piracy," applying the
labeling system it construed out of the actions of a policy-making branch of
government overruling the judiciary in the very fact situation before the
court. 254
President Lincoln's exchange of the convicted "pirates" in the case of the
Jeff Davis 25S does not stand alone. Under instructions from Judges Grier and
Cadwalader in a case in Pennsylvania in 1862, convictions were obtained on a
"positivist" charge of "piracy" against a Confederate raider named Smith
and others. Under an agreement between the two judges and the prosecuting
authorities, the prisoners were not sentenced but were transferred to military
control as prisoners of war. 256 A Confederate adventurer named Burley (or
Burleigh) was extradited from Canada to the United States in 1864 under the
"piracy" provision of the Webster-Ashburton Treaty, but Judge Fitch of
Ohio at the trial held that his acts were "belligerent" and not "piracy"
because lacking "animumfurandi." 257
While the Prize Cases enabled the Union forces to institute and enforce a
blockade of Confederate ports against neutral vessels, and state court judges
of varying persuasions were able to vent their frustrations against the
Confederate authorities in harsh words without actually doing violence to the
apparent intentions of the innocent parties whose contracts were before the
courts for interpretation, Federal District court judges were facing the same
difficulties on the lower levels. Two cases in 1861 will illustrate the confusion.
In Massachusetts, District Court Judge Sprague charged a Grand Jury with
regard to the Confederate seamen whose separate cases were to be presented:
If war is actually levied, all those who perform any part, however minute, or however remote from
the scene and who are actually leagued in the general conspiracy are to be considered as traitors. 258
He then went on to define "pirates:"
Pirates are highwaymen of the sea, and all civilized nations have a common interest, and
are under a moral obligation, to arrest and suppress them; and the constitu-
tion . . . enables the United States to perform this duty, as one of the family of nations.
Pirates are called and recognized as enemies. They carry on war, but it is not natural
United States Law 179
war; and they are not entitled to the benefit of the usages of modern civilized
international war. There being no government with which a treaty can be made, or
which can be recognized as responsible for the acts of individuals, the individuals
themselves are held amenable to criminal justice, and liable to be put to death for the
suppression of their hostilities. If a number of persons, large or small, associate together,
and undertake to establish a new government, and assume the character of a nation, and
as such to issue military commissions, any other nation may, according to its own view
of policy or duty, either utterly refuse to recognize the existence of such assumed
government, and treat all who, acting under it, commit aggressions upon the ocean, as
mere pirates; or each nation may fully recognize such new government; or it may adopt
any intermediate course between these two extremities, — to some extent, and for some
purposes, recognize the existence of the new government, while in other respects, and
for other purposes, it rejects its pretensions to be deemed a nation. Some of the nations of
the earth, and particularly Great Britain, have taken this intermediate course in relation
to the self-styled 'Southern Confederacy.' . . . She in no degree interferes with the
manner in which we shall treat either our own citizens or foreigners who may be
engaged in this conflict, even although [sic] such foreigners be British subjects. She
leaves us to deal with them as traitors or pirates, according to our own sense of justice
and policy. Against this her position, we have nothing to urge under the law of nations or
treaty stipulations. 259
Judge Sprague then went on to review the pertinent Federal legislation of
the United States, including the "piracy" statutes of 1790, 1820 and 1847, 260
leaving it to the Grand Jury to determine on the particular facts that might be
presented to it whether any individuals ought to be indicted for "piracy" or
"treason" under the laws of the Union for their actions in support of the
Confederacy. It seems plain that the principal result of this charge was to
reduce the question of the proper legal classification to one of municipal law,
and that law for the purposes of a Grand Jury empaneled under the
Constitution was the law of the Union.
How this approach worked in practice in Massachusetts is not known
beyond the evidence noted with regard to Fifield v. Insurance Company of
State of Pennsylvania that some convictions for "piracy" were obtained at
least in Pennsylvania, and that President Lincoln did not regard himself as
bound by the rigid view of American classifications adopted by Judge Sprague
and others, but treated even convicted "pirates" under this view as
"belligerent enemies" subject to parole and repatriation without "pardon"
under the laws of the United States.
A rather less rigid view was taken by the Federal courts in New York. In
the Federal District Court for the Southern District of New York Justice
Nelson charged a petty jury regarding the same Federal statutes and
continued as follows:
Now, if it were necessary, on the part of the Government, to bring the crime . . . [of the
Confederate raiders] within the definition of robbery and piracy, as known to the
common law of nations, there would be great difficulty . . . upon the evidence. For that
shows, if anything, an intent to depredate upon the vessels and property of one nation
only — the United States — which falls far short of the spirit and intent, as we have seen,
180 The Law of Piracy
that are said to constitute essential elements of the crime. But the robbery charged in this
case is that which the Act of Congress [of 1820] prescribes as a crime, and may be
denominated a statute offence, as contra-distinguished from that known to the law of
nations. . . . [As to whether there is a legal state of war between the Union and the
Confederacy, that, according to Judge Nelson was a matter for] the departments of our
Government that have charge of our foreign relations — the Legislative and Executive
departments. . . . [U]ntil those departments have recognized the existence of the new
Government, the Courts of the nation cannot. 261
But the precedents of the Spanish colonies in America seemed to Nelson to
raise confusing issues. The political arms of the United States government had
not "recognized" any status in the revolted Spanish colonies with legal
implications until 1822.
Prior to this recognition, and during the existence of the civil war between Spain and
her Colonies, it was the declared policy of our Government to treat both parties as
belligerents . . ., equally entitled to the sovereign rights of war as against each other. 262
Not only was he unable to state where this policy was "declared" prior to
1822, but it appears that the Act of 1822 by which the independent status of the
former Spanish colonies was "recognized" by the Congress made no
difference in the courts. He implied that absent recognition there is no change
in the prior legal relationship, thus that the Confederate raiders could not be
regarded as authorized by either the law of an unrecognized Confederate
government or by the international law of war prior to the "recognition" of a
status of war by the political branches of government. But the facts that had
resulted in the courts treating the commissioners of the Spanish colonies as
belligerents as long as their depredations were aimed, within the terms of
their commissions, solely against Spanish shipping, despite the silence of the
political branches of the American government, apparently spoke loudly to
some members of the jury. In U.S. v. Baker and others, "The jury were
discharged, without being able to agree on a verdict." 263
British judges had similar problems in classifying the American struggle
within the system adopted by the political branches of the British government
to try to reflect facts and policy in a coherent pattern of law. In May 1864 the
United States sought extradition of a group of Confederate raiders who had
seized an American merchant ship and then claimed asylum in England. 264 The
Webster- Ashburton treaty of 1842 265 provided for the extradition of those
accused of "Piracy" in Article X when the offense had been committed
within the jurisdiction of either party and the person accused of committing it
were found within the other. The extradition request was denied, but on such
technical grounds that the suspicion must exist that the British court found
itself in a dilemma between the classifications of "piracy " and "belligerency"
and did not want to face the case squarely. Three judges wrote separate
opinions for the majority. Judge Crompton pointed out that the question of
whether the acts of depredation were "piratical" or "belligerent," with
United States Law 181
evidence that the captured goods were taken for the personal use of the
accused, and not taken for submission to a Prize court, must be one for a
jury. Then, instead of holding that there was enough evidence (or not
enough) to warrant extradition and the submission of the case to an
American jury on a charge of "piracy, " he construed the Treaty and statute
to refer only to cases which could be tried only in the jurisdiction of the
requesting state and not in the jurisdiction of the "asylum" state:
. . . 'committed within the jurisdiction of the United States of America'
I own, appears to me to mean within the peculiar jurisdiction of the United
States, and would not be properly used if the common jurisdiction of every
maritime nation in the world were meant [emphasis sic]. 99 Since all
maritime nations, in his view, had equal legal powers to try "pirates," the
"piracy" intended by the Webster- Ashburton Treaty must mean only
municipal law "piracy," not "piracy jure gentium. 9 ' Interpreted this way,
"piracy" to be extraditable under the terms of the treaty 266 must be a crime,
like murder, punishable independently under the laws of the treaty partners
but not committed within the prescriptive jurisdiction of both at the same
time. Crompton thus seemed to presume that the international law
regarding "standing" did not apply to "piracy," and that the only sort of
"piracy" that would come within the terms of the treaty was that which
was analogous to taking a commission from a foreign power to act against
fellow-citizens as embodied in both British and American statutes. 267 Why
taking a commission from a rebelling "authority" did not satisfy this
requirement, he did not say. Indeed, his opinion is filled with apparently
unsupported assertions, such as, "Suppose these persons rose up in mutiny,
that is no less a piracy against the law of nations, and all other powers have
the same jurisdiction to punish, although the ship is part of the territory of
the country to which she belongs." 268
Judge Shee agreed on the basis of the word "asylum" in the treaty and
statute that "piracy jure gentium" was not covered and found that the
American statutes of 1790 and 1819-1820 give a basis for this interpretation by
distinguishing between "piracy on the high seas," which was "piracy jure
gentium," and robbery in the waters appertaining to the United States. In his
opinion, the Tivnan defendants looked like "pirates jure gentium," and not like
"pirates" under American law because their acts occurred on the high seas.
Judge Blackburn came to the same conclusion and found a way to avoid
applying the American statutes of 1790 and 1819-1820 as overlapping the
British statutes to bring the offense within the terms of the treaty and statute:
But looking at the evidence, what was done by the prisoners is either taking the ship for
plunder, which would be piracy jure gentium, in which case there is no power in us by
statute to give them up, or an act of war, and consequently not triable anywhere. For
although the Confederated States are not recognized as an existing power, yet they are
as belligerents. 269
182 The Law of Piracy
Chief Justice Cockburn dissented, but solely on the ground that in his
interpretation the treaty and statute provided adequately for the extradition
of "pirates jure gentium." He pointed out that there were ample reasons for
such a provision, such as the difficulties of trial in one jurisdiction when all the
witnesses are in the other. As to the relationship of "piratical intent" to
"belligerent intent," that, in his view, was a question for the jury. 270
Reviewing the case as a whole, and considering that something very like
extradition had in fact taken place in 1834 with regard to "pirates" totally
independently of the treaty of 1842, 271 and that the defendants were not tried
for "piracy" in England at all, the impression is left that extradition was
refused because the British judges did not trust American courts to make the
distinction that Chief Justice Cockburn indicated would be their duty, and
that the British classification of events during the American Civil War would
be disregarded by American courts bound by American classifications of the
same events to deprive the Confederate raiders of the privileges of
"belligerents" that the British felt they ought to have. The constant
repetition that the prisoners might well be "jure gentium pirates" seems either
an encouragement to the British authorities to try them before a British jury
where the British classifications would have governed, or a politic sop to the
American authorities requesting extradition, to indicate that the refusal was
not based on British sympathies with the Confederate cause — whether or not
that was in fact the case. 272
The more or less definitive American classification of the Civil War did
not come until thirteen years after the War ended. In Ford v. Surget 273 Justice
Harlan for a unanimous court hit on an ingenious rationale. Although the
Confederacy as such was legally a nullity as far as the Union was concerned,
the governments of the individual states of the Confederacy remained
governments under the American Constitution of 1787. The legal acts of the
Confederacy, therefore, so far as they had legal effect within the individual
states of the Confederacy, were entitled to all the respect of state laws under
the Constitution. With regard to the military activities of the Confederate
army, a "positivist" rationale was found for giving them legal effect:
To the Confederate army was, however, conceded, in the interest of humanity, and to
prevent the cruelties of reprisals and retaliation, such belligerent rights as belonged
under the laws of nations to the armies of independent governments engaged in war
against each other, — that concession placing the soldiers and officers of the rebel army,
as to all matters directly connected with the mode of prosecuting the war, on the footing
of those engaged in lawful war, [and exempting] them from liability for acts o(
legitimate warfare. 274
Justice Clifford, in a separate concurring opinion, addressed the situation
of the Confederate raiders directly. He began by citing the Prize Cases for the
"naturalist" proposition that ". . . when the regular course of justice is
interrupted by revolt, rebellion, or insurrection, so that the courts of justice
United States Law 183
cannot be open, civil war exists, and hostilities may be prosecuted to the
same extent as in public war." 275 He noted with approval the refusal of the
Massachusetts Supreme Judicial Court, and the Pennsylvania and Maine
Supreme Courts to hold the Confederate States' commissioners to be
pirates, 276 and concluded:
Exceptional cases supporting the opposite view may be found in the State reports; but
they are not in accord with the decisions of this court, and are in direct conflict with
the great weight of authority derived from [international law]. 277
Once again, as when viewing the attempt by Justice Story to preserve his
universal-jurisdiction, univeral-standing, natural-law-of-property concep-
tion of the international law of "piracy" derived from the coinciding
municipal laws of the principal European maritime powers, in the face of
the judicial-deference-to-policy-makers approach taken by the majority of
the American Supreme Court under Chief Justice Marshall, there appears
to have been a Supreme Court Justice restructuring the facts to suit his
preference for a conceptual approach. Once again, the grand framework
seemed unable to gain the support of a majority of the Court, although,
again, not expressly rejected either. Once again, the majority took a view
of the law based not on underlying structures of justice or evidence of the
conscience of mankind perceived through a selective citation to the
opinions of others, but based on amoral policy. The rationale for legal
classifications seen by the majority was not any perception of underlying
principle, but a series of decisions by the policy branches of government
expressed in inconsistent terms and occasionally resulting in inconsistent
policies that maximized the self-importance of the policy-makers by
regarding their practices as entirely volitional. The privileges of
belligerency were "conceded" to the Confederate Army; the reasons for
that "concession" were political: "the interest of humanity" and "to
prevent the cruelties of reprisals and retaliation." It is clear that if those
factors had been regarded as less weighty by the policy-makers, as indeed
they were from time to time, the "concession" need not as a matter of law
have been granted. This approach, visible with regard to "piracy" since the
time of Gentili at least, we have called "positivism. " And the same limits to
the discretion of policy-makers are apparent, resting on reciprocity, the
need to deal with a real world in which legal labels have strange effects if
not related to some degree with facts, and the pressures from internal and
external constituencies (in the case of the American Civil War, including
the views of British statesmen and jurists with whom some contacts were
economically and politically unavoidable, or avoidable only at exhorbitant
cost to the Union).
The American Civil War experience was summed up by Richard Henry
Dana 278 in 1866 when annotating a new edition of Wheaton's classic text: 279
184 The Law of Piracy
The following propositions are offered, not as statements of settled law (for most of
them are not covered by a settled usage of nations, by judicial decisions of present
authority, or by the agreement of jurists), but as suggestions of principles: —
I. The courts of a State must treat rebellion against the State as a crime. . . . If the acts are
depredations on commerce protected by the State, they may be adjudged piracy jure
gentium by the courts of the State. It is a political and not a legal question, whether the
right to so treat them shall be exercised.
II. The fact that the State has actually treated its prisoners as prisoners of war . . ., or has
claimed and exercised the powers and privileges of war as against neutrals, does not
change the abstract rule of law, in the Court. . . .
III. If a foreigner knowingly cruises against the commerce of a State under a rebel
commission, he takes the chance of being treated as a pirate jure gentium, or a belligerent.
It is not the custom for foreign nations to interfere to protect their citizens voluntarily
aiding a rebellion against a friendly State, if that State makes no discrimination against
them.
IV. If a foreigner cruises under a rebel commission, he takes the chance of being treated
as a pirate or a belligerent by his own nation and all other nations, as well as by that he is
cruising against. If his own nation does not recognize the belligerency of the rebels, he is,
by the law of his own country, a pirate. If it does, he is not. . . . [T]he courts of each
nation are governed by the consideration whether their own political authorities have,
or have not, recognized the belligerency.
V. Where a rebellion has attained such dimensions and organization as to be a State de
facto, and its acts reach the dimensions of war de facto, and the parent State is obliged to
exercise powers of war to suppress it, and especially if against neutral interests, it is now
the custom for the State to yield to the rebellion such belligerent privileges as policy and
humanity require; and to treat captives as prisoners of war. . . Yet this is a matter of
internal State policy only, changeable at any time. 280
This approach, essentially leaving it to each municipal legal system to
attach legal words of art as it chooses for policy reasons, and referring
questions of legal policy within the American legal system to the arms of the
government given policy discretion by the American Constitution, amounts
to a total denial of the existence of any "international law'* of "piracy."
"Piracy jure gentium" seems to have become a conception of each state's
municipal law to Dana.
The Later Practice, That this approach was carried over to international
affairs is evidenced by the incident of the "Haytian insurgents" in 1869, when
a circular dispatch from the government of Haiti attempted to convince the
several diplomatic missions accredited to that country that the vessels of
insurgents who had not been recognized by any other government "can not be
considered according to the spirit of international maritime law otherwise
than real pirates." The reply which the Secretary of State (Hamilton Fish)
authorized the American Ambassador to Haiti to render said:
United States Law 185
We may or may not, at our option, as justice or policy may require, treat them as pirates
in the absolute and unqualified sense, or we may, as the circumstances of any actual case
shall suggest, waive the extreme right and recognize, where facts warrant it, an actual
intent on the part of the individual offenders, not to depredate in a criminal sense and for
private gain, but to capture and destroy jure belli. 2 * 1
The apparently absolute inability of a state to convince other states to
adopt its evaluation of the facts as warranting the label "piracy" at
international law, was demonstrated repeatedly, most amusingly (from a
distance of 100 years) in an incident of 1873 when a German naval commander
acted on a Spanish proclamation terming some insurgent vessels "pirates" in
the Mediterranean Sea. He captured one and claimed it as German prize, but
his own government disavowed the act. Mr. Frederick T. Frelinghuysen as
Secretary of State in 1883, ten years later, advised the American Ambassador
in Haiti that the incident demonstrated, if anything, an abuse of the Spanish
legal power to classify events in Spain. He adopted Justice Nelson's opinion
from U.S. v. Baker and Others 282 without citing it, saying that "The rule is,
simply, that a 'pirate' is the natural enemy of all men, to be repressed by any,
and wherever found, while a revolted vessel is the enemy only of the power
against which it acts." He went on:
While it may be outlawed so far as the outlawing state is concerned, no foreign state is
bound to respect or execute such outlawry to the extent of treating the vessel as a public
enemy of mankind. Treason is not piracy, and the attitude of foreign governments
toward the offender may be negative merely so far as demanded by a proper observance
of the principle of neutrality. 283
It was even found possible within this general orientation to rationalize the
recapture of an American vessel from an unrecognized "belligerent" who did
not seem to be a "pirate" because animated by political and not personal
goals. That was to treat the captor as if he did not exist! In 1885 some
American ships near Colombia were seized by an insurrectionary force. Dr.
Francis Wharton, the Solicitor of the Department of State, advised that the
vessels could be legally retaken by the United States when on the high seas
even though the crew cannot be regarded as pirates or as belligerents:
But, while this is the case, and while it may be conceded that vessels seized by them on
the high seas are seized under claim of right, yet, vessels belonging to citizens of the
United States so seized by them may be rescued by our cruisers acting for the owners of
such vessels in the same way that we could reclaim vessels derelict on the high seas. 284
A different view at the same time denied the existence of any intermediary
classification between "pirate" and "belligerent." That view ran into such
difficulties that it was ultimately disregarded in the case in which it was
pronounced, and, without acknowledgment or deeper analysis, Wharton's
approach was applied to get the result he would likely have wanted. The
Ambrose Light 2 * 5 was a ship sailing under license of unrecognized authorities
competing for control of a part of the state of Colombia. It was seized in the
186 The Law of Piracy
Caribbean by an American warship. No Americans were involved in the
voyage of the Ambrose Light, and no Americans were victims of its activities.
Judge Brown, of the Federal District Court in the Southern District of New
York examined a huge selection of Supreme Court cases and publicists'
writings (nearly all of which are analyzed above) to conclude that there was
no intermediate legal position between "belligerency" and "piracy," and
that the decision as to which of these alternative classifications were to be
applied by American courts depended entirely on "recognition," although
not necessarily the formal act of recognition by the United States
government:
[I]n the absence of recognition by any government whatever, the tribunals of other
nations must hold such expeditions as this to be technically piratical. 286
On the other hand, he pointed out that this holding, which rested almost
entirely on cases involving criminal charges under the Acts of 1790 and
1819-1820, was not related to any criminal charge:
[T]his is a suit in rem for the condemnation of the vessel only; not a trial upon a criminal
indictment of the officers and crew. . . . [Condemnation of the vessel as piratical does
not necessarily imply a criminal liability of her officers or crew. 287
Why the precedents in one area of law should apply in another area in
which, by his own analysis the impact may be quite different and not
reversable, is not analyzed.
The final oddity in the case is that all of the lengthy analysis was at the end
discarded when some diplomatic correspondence between the United States
and the defending government of Colombia was construed by the court to
imply "recognition" of a status of belligerency favorable to the authorities
commissioning the Ambrose Light. The vessel was not condemned as
"piratical, " but was returned to the officers and crew from which it had been
taken. 288 Thus the case cannot represent more than yet another example of a
learned judge using the opportunity of an interesting fact situation to
expound a view of the law resting on "natural" principles divorced from
reality, and finding that the best he could achieve was to show that his
approach was not necessarily inconsistent with precedent and principle; that
policy-makers, confronted with reality, had to make adjustments of policy to
fit that reality, and the result was the creation of a legal pattern that brought
about a sensible result in disregard of grand theories.
Summary and Conclusion, This, then, represents the "classical" American
view of the law of "piracy." It is possible to assert that by the end of the
nineteenth century, as far as the United States was concerned, the
international law relating to "piracy," if there were any such law, existed
only insofar as adopted by the municipal law of the United States. The act of
adoption was in part statutory, as in the Acts of 1790 and 1819-1820, in part
through judicial decisions interpreting the references in those Acts to the
United States Law 187
"law of nations," and in part through diplomatic practice and internal
practice of the United States during a period of ambiguously "recognized"
belligerency. The "international law" of "piracy" as thus adopted into
American law appears to have been in part the mere British municipal law
relating to "robbery and murder within the jurisdiction of the Admiral" at
English law, in part American statutes parallel to the English statutes of the
time of William III terming "piracy" acts of treason or depredations
analogous to treason undertaken under foreign license (which appear never to
have been considered part of the "international law" of "piracy," probably
because the particular acts involved would not be "crimes" by any other law
than the law of the sovereign making the legislation), and in part the
application to the interpretation of criminal statutes of the concept of
"piracy" applied in England to property cases in which the taker of the
property was considered to have no claim to it in an in rem action even if no
criminal action was involved. The multiple confusions were caused in part by
using a word, "piracy," that had a general pejorative meaning in vernacular
usage since the early 17th century at least, and at least three distinct legal
usages. It was compounded by the dilemmas in theory of those who would
define "international law" to include the "natural law of nations" evidenced
by parallel statutes in many countries, an approach rejected in practice during
the early 19th century in connection with the slave trade both in Europe and
America. It was further compounded by the conception of "naturalist "jurists
that behind any rule of law reflecting moral values, there must lie a "perfect"
model of which the rule is a mere reflection. This platonic approach to legal
logic was rejected in practice by the more pragmatic jurists and publicists of
the Anglo-American system, but remained so deep in the basic conceptions of
"law" held by such eminent moralists and jurisprudential thinkers as Joseph
Story, that it was never wholly forgotten or rejected. Rationales were
developed for retaining this "idealist" conception in case after case in which
it seemed to be irrelevant at best, morally interesting but legally deceptive
normally, and obscurantist at worst. In practice, when a non-"idealist"
statesman or judge was involved, the language of universality and conception
of a perfect "international law" lying behind the imperfections of national
legislation drop out with no apparent loss to coherence.
On the other hand, the dominance of moral-free "positivism" in the
thinking of the states and pragmatic jurists who have governed the actual
policies of the United States from the earliest days of the Constitution of 1787
was also limited. Not only was the strain of moralism never entirely
eradicated from American legal thought, but references to "piracy" were
found useful in political situations in which the combination of legal results
and vernacular pejoratives served policy interests. The result in some cases,
condemnations for "piracy" of political actors later treated as honorable
political captives, could well look to many as a subservience of true "law" to
188 The Law of Piracy
ill-conceived policy, making the statesmen andjurists appear more hypocrites
than upholders of the moral standards or practical needs of society.
In the dynamic and competitive society of the United States, there was no
way these different approaches could be combined into a single coherent
jurisprudence; so necessarily, practical politics, thus "positivism," won in
practice. The "naturalist" dicta of Story and others nonetheless remained for
later generations to cite, and the jurisprudential battle went on. 289
Notes
1. Articles of Confederation, adopted by the Congress on 15 November 1777, ratified by all the states and
entered into force 1 March 1781, Article II, in 69th Cong., 1st Sess., House Doc. No. 398, Documents
Illustrative of the Foundation of the Union of the American States (1927) 27.
2. Id. art. IV.
3. See notes 1-165 and 1-201 above.
4. Articles of Confer ation, arts. VI(4) and IX(6).
5. Id. art. IV(5).
6. Id.
7. Id. art. IX(1).
8. Id. art. IX(1) first clause. The other exceptions referred to there include the recourse to "war" by
any state "actually invaded by enemies" or which "shall have received certain advice of a resolution being
formed by some nation of Indians to invade such state, and the danger is so imminent as not to admit of a
delay till the United States in Congress assembled can be consulted." Id. art. VI(5).
9. Id. art. IX(1). The power reserved to the states was only that power mentioned in art. VI. The power
to establish maritime and prize courts is found in art. IX(1) alone, not in art. VI at all.
10. Documents Illustrative cited note 1 above, at p. 109 sq.
11. John Rutledge was the head of the delegation from South Carolina, former Governor of that state
and at the time of the Constitutional Convention a judge. A frank character sketch of Rutledge by Major
William Pierce of Georgia appears in id. at 106-107.
12. Id. 471,475.
13. Id. 479.
14. Edmund Randolph was 32 years old and Governor of Virginia. He later became Attorney General of
the United States. See below. An excellent biography is John Reardon, Edmund Randolph (1974).
15. Documents Illustrative 560.
16. Wilson is described by Major Pierce as "among the foremost in legal and political knowledge. "Id.
101.
17. Id. 723.
18. Id.
19. Article I, sec. 8, cl. 10.
20. E.g., the power to regulate commerce with foreign nations, Art. I, sec. 8, cl. 3. This power has been
exercised, and the counterfeiting of foreign currency and other documents in the United States is a
criminal offense. 18 U.S. Code sees. 478-484, 486, 488-489, 492. This legislation was first enacted by the
Congress only in 1884 (23 Stat. 22, 48th Cong., 1st Sess., Ch. 52) revised in 1909 (35(1) Stat. 1088 at
1117-1119, 60th Cong., 2nd Sess., Ch. 321).
21. Art. Ill, sec. 2, cl. 1.
22. Art. Ill, sec. 3.
23. Documents Illustrative 603 (Madison's Debates, Session of 23 August 1787).
24. Id. 702.
25. Id. 712; it appears in the Constitution as Art. VI, cl. 2.
26. Hamilton, Madison, Jay, The Federalist (1788, Cooke, ed. 1961) 279.
27. Madison's Debates 281. This seems rather an oversimplification by Madison. See text above at notes 7
and 9.
28. Id.
29. Id.
30. Id. 280-281.
31. One major study of the early statutes and their supersession and judicial expansion in the first three
decades of the 18th century is Dickinson, Is the Crime of Piracy Obsolete?, 38 Harvard Law Review 334
United States Law 189
(1925), sparked by the suggestion that rum running in violation of the Prohibition laws of the United States
might be analogous to "piracy." Lacking the full background of the evolution of the conception of
"piracy " before 1788, Dickinson's worthy work misses many of the major implications of these statutes and
cases, unfortunately, so much of his research has had to be duplicated. I have condensed and focused this
study as much as possible to avoid duplicating his analysis, but have repeated it with regard to the points of
convergence and followed the line dictated by the sources and the focus of this study as to the points on
which his emphasis on narrower issues and those timely only in the light of his special interests have made us
diverge as to evidence and conclusions.
There seem to be at least three quite different conceptions of piracy implicit in the statutes, cases and
practice of the United States which Dickinson regarded as a seamless whole: (1) "Piracy" as a municipal
law crime (whether or not based on conceptions of international law or the "law of nations"); (2) "Piracy"
as the acts of unrecognized belligerents, like the privateers of "Buenos Ay res" or, eventually, the naval
arms of the Confederate States of America in 1861-1865 and (3) "Piracy" as the military activity of
unrecognized or "barbarous" political societies, like the Barbary states (with regard to which the attitudes
towards the Indian tribes of the American continent were relevant but unstated in diplomatic
correspondence). In this study, these distinctions have been shown to have been implicit in the classical
writings from Roman times and reflected in doctrine throughout history. That consciousness affects the
focus of the entire work and makes Dickinson's analysis seem confused in places.
32. An Act to Establish the Judicial Courts of the United States, 1st Cong. 1st Sess. ch. 20, 1 Stat. 73.
33. 1 Stat. 76-77. The last quoted provision lay more or less moribund after the period now to be
discussed until revived as a basis for extending United States federal courts' jurisdiction to a case involving
torture by a Paraguayan official against a Paraguayan youth in Paraguay in 1976. Filartiga v. Pena-Irala 630
F.2d 876 (2d Cir. 1980). See Rubin, U.S. Tort Suits by Aliens Based on International Law, 21 International
Practitioners Notebook 19 (1983). Other cases are being presented and the proper scope of the statute is a
matter of considerable debate in 1987. See exchange between D'Amato and Rubin in 79(1) AJIL 92-113
(1985). An analysis of the relationship among admiralty, prize and tort law under the "law of nations" in
the experience of the framers of the Constitution is Bourguignon, Incorporation of the Law of Nations
During the American Revolution . . ., 71 AJIL 270 (1977). It seems to support Rubin's view. I am indebted to
my colleague, Professor Leo Gross, for bringing this article to my attention.
34. Judiciary Act sees. 4 and 11, 1 Stat. 74-75, 78-79.
35. 1st Cong. 2d Sess., 1 Stat. 112.
36. As to the issuance of letters of marque and reprisal to privateers active against French vessels during
the undeclared war with France of 1798-1800, see below at notes 154 to 159.
37. 1 Attorney Generals' Opinions (AG) (1841 ed.) 10 at 10-11. There are two official compilations of the
earliest Attorney Generals ' Opinions. The edition of 1841 is more complete with regard to volume 1 . The same
volume in the edition of 1852 is more commonly found in law libraries.
38. 1 AG 33, opinion dated 6 July 1795.
39. Id.
40. 12Bevans, Treaties and Other International Agreements of the United States of America 1776-1949(1974) 13; 8
Stat. 116. The precise term of the treaty involved was article 27, by which each side agreed to deliver up to
the other "all persons who, being charged with murder or forgery committed within the jurisdiction of
either, shall seek asylum within any of the countries of the other ..."
41. 1 AG (1841 ed.) 48-49, opinion dated 14 March 1798.
42. Id: 50-51. Lee two days later considered the possibility that the Nigre might turn out to be neither
French nor a "pirate" vessel, but British. In that case, he suggested that if the court find that she has done
"nothing contrary to the laws of nations or treaties, she will be acquitted" and go free. Id. 51-52. This last
opinion, dated 22 September 1798, is not reproduced in the 1852 edition of id.
43. See text at notes 11-60 sq. above. It will be remembered that Kidd had two commissions and that
there is general language in the case and some other writings asserting that action in excess of a commission
is "piracy." It may also be remembered that that language was criticized above and the result of the trial
attributed to Kidd's disregard of his obligations to the commission-granting authority and not to excesses
against his victims.
44. 11 & 12 Will. Ill c. 7 (1700) sec. viii, set out in text at note 11-32 above and in Appendix LB below; the
American Act of 1790, cited note 35 above, says, in section 9:
9. . . . That if any citizen shall commit any piracy or robbery aforesaid, or any act of hostility
against the United States, or any citizen thereof, upon the high sea, under colour of any
commission from any foreign prince, or state, or on pretence of authority from any person,
such offender shall, notwithstanding the pretence of any such authority, be deemed,
adjudged and taken to be a pirate, felon and robber, and on being thereof convicted shall
suffer death.
This statute does not define "piracy," or any "crime" under international law, but, like the British
190 The Law of Piracy
statute of 1700, makes criminal at American municipal law certain acts by American citizens against other
American citizens only. It is not entirely clear what "piracy" means in this context, disjoined by "or" from
the word "robbery, "both apparently confined to "the high sea." See text at notes 137 sq. below at which
the fuller range of foreign commissions will be discussed in a single section.
45. As to the English root of the idea, and the confusion between this sort of "treason" and the
international law of "piracy, "see text at note 1-201 andch. II above. The American view expressed in sec.
9 of the 1790 Act was identical, but the reasoning underlying it is not expressed in any known document. It
probably merely adopts the British view of 1700, with which lawyers in the American colonies had been
familiar for nearly a century.
46. Bemis, Jay's Treaty (1923, rev'd ed. 1962), Appendix III, comparison of Jay's Draft of September 30,
1794, with the Treaty Signed by Jay and Grenville on November 19, 1794, 391 at p. 426-432.
47. Id., pp. 291 sq. Cp. instructions 4, 12, 14 at p. 293-4, 295.
48. 11 Bevans 516 at 508-519, art. VI. Grammar sic: "Each Party" should presumably have been plural:
"The Parties severally."
49. Oddly, the Spanish original does not mention "robbers" only "algunos Piratas en Altas Mar." See
parallel texts in Bemis, Pinckney's Treaty (1926, rev'd ed. 1960), Appendix V, p. 343 at p. 350. Presumably,
Pinckney thought the phrase "Robbers on the high seas" explained the word "pirates" while the Spanish
negotiators construed the word "Piratas" to include some activity on land as well as on the high sea, and
thus sought to restrict the application of the article as it might apply in Spanish Florida. But direct evidence
to support these speculations is not available within the reasonable compass of this study.
50. Id. art. IX at p. 350.
51. Id. art. VIII.
52. Id. art. XIV.
53. Levy was barely 20 years old at the time. He led a remarkable life. See 11 Dictionary of American
Biography 203-204.
54. U.S. v. Tully and Dalton, 1 Gallison 247 (1812) at p. 252.
55. Story cites 4 Blackstone, op cit. note 11-153 above, p. 72. See text at note 11-155 above.
56. U.S. v. Tully and Dalton, op. cit. 252. Per contra, Sir Charles Hedges, quoted at note 11-60 above,
required that the mariners "shall violently disposses the master." Story does not cite Hedges's charge in
Rex v. Dawson on this.
57. Id. 254. The statutory language is set out above at note note 35.
58. Id.
59. Id. 256. Molloy, op. cit. note 1-175 above 41, second paragraph of ch. IV sec. xvii. Molloy's support for
this assertion is a statute of 14 Edw. Ill not more closely identified. The only statute of 14 Edw. Ill in any
way pertinent to any of the questions addressed here appears to be 14 Edw. Ill st. 2 ch. 2 (1340) which
implements chapter 30 of Magna Carta by providing for the safe reception and departure of "all
Merchants, Denizens and Foreigners (except those which be of our Enmity)" who pay the prescribed
taxes. 1 Pickering, op. cit. 508 ["Et come y soit contenuz en la Grande Chartre ae toutz marchantz eient suave et seure
conduyt daler hors de nostre roialme dEngleterre . . ., Nous . . . volons etgrantons . . . ae touz marchantz denzeins etforeins,
forspris ceux qe sont de nostre enemite, puissent sanz estre destourbe sauvement venir en le dit roialme ..."]. This does not
appear to be the statute Molloy had in mind.
60. U.S. v. Howard and Beebee, 3 Washington 340 (1818).
61. Id., p. 344 sq. No other section of the Act came near to fitting the facts.
62. U.S. v. Palmer et al., 16 U.S. (3 Wheaton) 610 (1818). See text at notes 75 sq. below.
63. U.S. v. Howard and Beebee at p. 346-349.
64. Cited note 54 above.
65. U.S. v. Ross, 1 Gallison 54 (1812).
66. Id. 627. Story's citations, principally to Coke's Third Institute, address the reach of the Admiral's
jurisdiction in English law. He did not distinguish between the Admiralty jurisdiction on board English flag
vessels in distant waters and foreign vessels in those waters, thus concluding that the Admiralty courts of all
countries have overlapping jurisdiction in all navigable waters, even territorial and perhaps even internal
waters of foreign states, regardless of the flags flown or the nationality of those involved.
67. See text at notes 11-64 sq. above. Molloy thought territorial seas jurisdiction was exclusive in the
territorial state.
68. See text at note 11-72 above.
69. U.S. v. Pedro Gilbert & Others, 2 Sumner 19 (1834). In this case Judge Story was sitting as ajudge of a
Circuit Court in an appeal by seven defendants from their conviction after five out of the original 12
defendants had been acquitted following trial in an American District Court. Story denied the petition for
a new trial for complex constitutional reasons involving double jeopardy, suggesting that the defendants'
proper remedy after conviction on evidence insufficient to support an inherently contradictory result was
to plead for a pardon from the Executive. These complexities of American Constitutional law lie beyond
the scope of this study. It may be significant that Story's seminal book, Commentaries on the Conflict of Laws,
United States Law 191
was first published also in 1834. Its introduction is invincibly "positivist," denying the existence of any
universal laws except the choice of law rules themselves (p. 29, 33). But Story does not address the slave
trade or "piracy" in that book. The naturalist view of the universality of the choice of law rules is now
substantially modified. See D.F. Cavers, A Critique of the Choice-of-Law Problem, 47 Harvard Law Review
173 (1933).
70. Id. note 1 on pp. 24-26. In fact the British did exercise jurisdiction in the case, but only over the
property seized on board the "pirate" ship captured by Capt. Trotter within an African river. According
to the recitation of facts, within a week after Pedro Gilbert and his friends had been convicted in the United
States in October 1834 their personal property, which had been seized and held by Captain Trotter, was
paid into the Registry of the appropriate British Admiralty Court by order of the Lords Commissioners of
the Treasury. The question was whether the property, being "bonapiratarum," was to be accounted by the
Crown as miscellaneous Treasury receipts or as part of the "droits" of Admiralty. Dr. Lushington held for
the Lord High Admiral. The Panda [1842] 1 W. Rob. 423; 3 BILC 771. The jurisdiction of an Admiralty
Court to pass on title to property before the court was not in question and Lushington 's reasoning sheds no
light on British jurisdiction over accused "pirates." It is not clear why it took eight years from the time
Pedro Gilbert was convicted until his property was legally disposed of.
71. 1 AG 15. It is instructive to read this opinion and speculate on the reasons its logic struck Americans
as unpersuasive when uttered by Libya with regard to the Gulf of Sidra in August 1981.
72. U.S. vs. Peter Wiltberger, 3 Washington 515 (1819) at 515-518, 524.
73. U.S. v. Wiltberger, 18 U.S. (5 Wheaton) 76 (1820) at 94-95, 104.
74. Id. 106-116.
75. Cited note 62 above.
76. The violence in U.S. v. Palmer et al. was actually committed ashore, and there can be no doubt of
the jurisdiction of the United States to make the perpetrators subject to American criminal penalties
regardless of the definition of "piracy " under international law. The pronouncements for which the case is
so often cited are dicta unnecessary for the decision.
77. Id., p. 630-631, 632-633.
78. Id. 641-642.
79. Id. 643.
80. See text at note 86 below.
81. U.S. v. Klintock, 18 U.S. (5 Wheaton) 144 (1820), Marshall's words.
82. Id. 152.
83. Id. 153.
84. This possibility was not farfetched. See text at note 138 and see note 140 below.
85. 3 Stat. 510, 15th Cong., 2d Sess. ch. 77. It is reproduced at Appendix II. A below with Wheaton 's notes.
86. Id. 513-514.
87. 3 Stat. 600, 16th Cong. 1st Sess. ch. 113. It is reproduced at Appendix II. B below.
88. 18 U.S. Code Sec. 1651 : "Whoever, on the high seas, commits the crime of piracy as defined by the
law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life."
The entire text of this part of the current U.S. Code is reproduced at Appendix II. C below.
89. U.S. v. Chapels, 25 Fed. Cas. 399 at 403, Case No. 14,782 (1819).
90. Id. 404.
91. U.S. v. Smith, 18 U.S. (5 Wheaton) 20 (1820) at 161.
92. Id. Note a, p. 163-180.
93. See text above notes 11-60 and 11-70 above. Story's references to Wynne, The Life of Sir Leoline Jenkins
(1724), seem consistently off by two pages from the original (1724) copy of Wynne available to me.
94. Id. 161-162.
95. Id. 164, 181-182.
96. Id. 183.
97. U.S. v. Pirates, 18 U.S. (5 Wheaton) 184 (1820).
98. Id. 203.
99. Id.
100. Id. 205.
101. Id. 195-197.
102. Id. 199-201.
103. See text at notes 65 and 66 above.
104. 1 Moore, Digest of International Law, 702-705 (1906), statements by Jefferson (1793), Pickering (1796)
and Madison (1805). On the various bases claimed by states for exclusive zones of one sort or another, and
the loss of persuasiveness for the distinctions during the 19th century, and the apprehension that they are
now coming back into vogue again as the need for simplicity and certainty is overborne by various other
considerations, see Rubin, Evolution and Self-Defense at Sea, in 7 Thesaurus Acroasium 107-116 (1977).
105. See text at note 54 above.
192 The Law of Piracy
106. The degree to which Story had to retreat on this is made clear by reading his elaborate opinion for a
unanimous Supreme Court in 1844 on the question of whether a ship was "piratical" whose undoubted
depredations were prompted by a vindictive and petty captain more than by any desire for gold. Story
applied the precise language of the statute of 1819, section 4, which makes it a "piracy" at United States
Federal law to engage in any "piratical aggression, or piratical search, or piratical restraint, or piratical
seizure, as well as a piratical depredation," to hold the ship condemnable as a piratical vessel. He released
the cargo to its owners, who had had no part in the aberrations of the captain. But he did not attempt to find
the "piracy" to be such at international law by virtue of being a "felony" within the jurisdiction of
Admiralty as he had in U.S. v. Tully and Dalton. U.S. v. Brig Malek Adhel, 43 U.S. (2 Howard) 209 (1844),
reproduced in 1 Deak 56. The case is analyzed at greater length in the text at notes 217-219 below.
107. 1 Stat. 347, 3rd Cong., 1st Sess., ch. 11.
108. 2 Stat. 70, 6th Cong. 1st Sess. ch. 51. The penalty for serving in a foreign slaver was up to 2 years
imprisonment and $2,000 fine; the fine for holding a business interest in the foreign slave trade was double
the value of the interest held. American vessels involved in that detestable trade were forfeit with half the
value going to the government and the other half distributed to the captors as prize.
109. Cited at note 87 above, sees. 4 and 5, 3 Stat. 600-601. Quoted in Appendix II. B below.
110. See The Antelope, 23 U.S. (10 Wheaton) 66 (1825). The unanimous opinion written by Chief Justice
Marshall, a Virginian, held the slave trade not to be a violation of the law of nations despite the American
and British statutes calling it "piracy. " For the analogous British case see The Le Louis [1817] 2 Dods. 210:
"No lawyer, I presume, could be found hardy enough to maintain that an indictment for piracy could be
supported by the mere evidence of trading in slaves. Be the malignity of the practice what it may, it is not
that of piracy in legal consideration" (opinion by Sir William Scott). The British anti-slavery movement
was spurred to other efforts, and the brilliant memorandum by Lord Castlereagh at the Congress of
Aix-la-Chapelle in 1818 argued:
If the moment should have arrived when the Traffic in Slaves shall have been universally
prohibited, and if, under these circumstances, the mode shall have been devised by which
this offence shall be raised in the Criminal Code of all civilized Nations to the standard of
Piracy; they conceive that this species of Piracy, like any other act falling within the same
legal principle, will, by the Law of Nations, be amenable to the ordinary Tribunals of any or
every particular State; . . . the verification of the fact of Piracy, by sufficient evidence,
brings them at once within the reach of the first Criminal Tribunal of competent
authority . . .
6 BFSP 77-85 at p. 79. This argument failed, as Portugal refused to agree and other states, principally
France, took the position that without Portugal there could be no consensus, and as a matter of positive law
Portuguese conceptions of the permissability of the slave trade were as persuasive as British conceptions of
its impermissability. Eventually the British were successful in suppressing the international slave trade not
by natural law arguments based on the horrors of the practice and natural rights of all humans, but by
treaties with Portugal, France and the others in which, in return for other things, permission was given to
Great Britain to stop the trade in each country's vessels.
111. See ch. II above.
112. See note 110 above.
113. U.S. v. Lajeune Eugenie, 26 Fed. Cas. 832, No. 15,551 (D. Mass.) (1822). Story was sitting asjudge
in the Federal District Court in Massachusetts under the Judicature Act of 1789. The quoted language is
taken from the photographic reproduction of the case in 1 Deak 144 at p. 153. As mentioned in note 69
above, Story's great work on Conflict of Laws, effectively destroying the logical underpinning of Cicero's
natural law of nations, jus gentium, as an operative municipal law theory in a world of legally equal and
independent states, did not appear until 1834.
114. Appendix II. B below.
115. U.S. v. Darnaud, 3 Wallace 143 (3rd Circ.) (1855) at p. 160-163.
116. Id. 178.
117. See note 110 above. France had insisted at Aix-la-Chapelle that whatever the moral evils of the
slave trade, and whatever the French legislation on the subject, Great Britain could derive therefrom no
legal right in the international legal order to stop French vessels on the high seas in order to suppress that
detestable traffic. The French position was upheld by Sir William Scott in the Le Louis, cited above at the
same note. It also underlay his refusal to consider condemning the Hercules [1819] 165 Eng. Rep. 1511, also in
2 Dods. 353. See text at notes 206-207 below.
118. See notes 110 and 117 above.
119. Quoted in part in note 110 above.
120. If the evils inherent in slavery could not be shown to be inconsistent with natural law in 1817 or
1825, and counterargument regarding racial superiority and moral benefits conferred on the slaves could
block legislation in the United States to abolish the entire practice state by state, or forbid implementation
United States Law 193
of the Fugitive Slave Law (see The Dred Scott Case, Scott v. Sandford, 60 U.S. (19 Howard) 393 (1857)), it
is hardly surprising that doubts exist today as to the sanctity of private property or even the
impermissability of torture as a matter of human rights law. But this is not the place for further analysis of
the inability of the legal order to create a consensus through natural law reasoning where the conscience of
mankind does not in fact agree.
121. Statute of the International Court of Justice, art. 38 (1) (c). This formula has its own history, of
course, but it is not necessary for present purposes to trace it.
122. The case is cited at note 113 above. The statute is reproduced at Appendix II. B below.
123. Story, Commentaries, loc. cit. note 69 above.
124. Cited at note 87 above; reproduced at Appendix II. B below.
125. Set out in the text at note 86 above; reproduced in full at Appendix II. A below.
126. This would, of course, include the port of London.
127. This provision is still statutory law in the United States. 18 U.S. Code sec. 1653. Minor amendments
were made in 1909 and 1948. The entire body of current United States positive law relating to "piracy" in
the sense discussed in this study is in 18 U.S. Code sees. 1651-1661 and reproduced in Appendix II. C below.
Those provisions of the Code relating to the President's authority to direct naval activity against "pirates"
but not defining the term, are in 33 U.S. Code sees. 381-387.
128. The high seas enforcement jurisdiction of the United States remains vested in the District Court of
the district of the United States in which the offender is arrested or first landed. 18 U.S. Code sec. 3238.
129. Consular courts with jurisdiction to settle legal disputes between nationals of the sending state
alone are a very old Mediterranean institution. The first American consular court was established in
Algiers by treaty dated 5 September 1795. 1 Malloy, Treaties, Conventions . . . (1910) 1. The treaty of 4
November 1796 with the Bey of Tripoli permits the establishment of consular "jurisdictions" by each party
"on the same footing with those of the most favoured nations respectively. " 2 Malloy, op. cit. 1784 art. IX at
p. 1786. The treaty of August 1797 (no specific date in August) with the Bey of Tunis provides for the
respective consuls to judge of "disputes" involving solely persons under his "protection," but if there is an
offense that crosses nationality lines and involves killing, wounding or striking, the territorial sovereign
has jurisdiction over the case and the consul a right merely to be present at the trial. Id. 1794, arts.
XX-XXII at p. 1799.
130. The first American experience of this was in reaction to activities of "Citizen" Edmond C. Genet,
the Minister of the revolutionary government of France to the United States 1792-1794. Among the
exercises of French "sovereignty" in American territory which Secretary of State Thomas Jefferson
complained of and which led to a demand for Genet's recall was the condemnation at his direction by
French consuls in the United States of British vessels captured by French revolutionary privateers and sold
by them to American buyers. Jefferson regarded the establishment of Prize Courts without the permission
of the territorial sovereign as a violation of international law; Genet regarded that a mere quibble based on
"aphorisms of Vattel. " After protest, Genet was recalled by the French authorites. This affair is concisely
summarized in 4 Moore, Digest of International Law (1906) 485-487.
131. The tale of American continental expansion at the expense of the Indian population and political
organization of the continent is far beyond the scope of this study. American reluctance to assume the
obligations of sovereignty outside the continent was not overcome until the very end of the 19th century. It
took over forty years of policy argument and political manipulation for those interested in establishing
American rule in Hawaii to convince an administration and two thirds of the Senate necessary for advice
and consent to the ratification of an annexation treaty, to achieve it. 1 Moore, Digest 481-504.
132. 1 Kent, Commentaries on American Law (1826) Lecture IX at p. 169-179 focuses on "Offences against
the Law of Nations."
133. Id. 170. He considered the slave trade to be "condemned by the general principles of justice and
humanity," but not "piratical" or "absolutely unlawful by the law of nations." Id.
134. Id. 171.
135. Id. 174.
136. Id. 175.
137. The most nearly comprehensive study of this use of the term "piracy" in Anglo-American practice
remains Lauterpacht, Recognition in International Law (1947, reprinted 1948) ch. XVIII. As was noted above at
note 31 with regard to Dickinson's treatment of the American municipal statutes, Lauterpacht 's balanced
work suffers somewhat from a lack of historical perspective and seems to miss the depth of the
jurisprudential argument. It has been felt necessary to duplicate and supplement his research with regard to
the early materials and my conclusions are somewhat different.
138. 16 Geo. Ill c. ix (1777). This statute was renewed annually until 1782. 18 Geo. Ill c. i (1779); 19 Geo.
Ill c. i (1780); 20 Geo. Ill c. v (1781); 21 Geo. Ill c. ii (1782). These statutes are published in 31 Pickering 312;
32 Pickering 1; id. 175; 33 Pickering 3; and id. 183.
139. 1 Moore, Digest 168-169. By 1779 the British were considered to have demonstrated by their
applying the law of war to land engagements with the Continental Army that they considered the land
194 The Law of Piracy
forces contacts to be governed by international law, not merely British municipal law as it might apply
under the Statute of Treasons quoted at note 1-201 above. Cp. the treatment of James II 's land forces in
Ireland in the 1690s, above esp. text at note 11-20.
140. The British Ambassador in the Netherlands requested the Dutch to expel from Texel one "pirate,
Paul Jones, of Scotland, who is a rebel subject and a criminal of the state" in October 1779. 10 Dictionary of
American Biography 185. The Dutch did expel him, but did not arrest him for "piracy" or any other crime.
They seem to have regarded the issue as solely one of maintaining Dutch neutrality in a "war" between
others, even though the British regarded the situation as one of internal criminality among British subjects.
The British view that "rebels" might be regarded as "pirates" seems consistent with the British legislation
cited in note 138 above. The apparent rejection of this position by all the other European powers who were
addressed on the issue is ambiguous. It might merely have been a denial by each power individually that the
facts warranted the legal conclusion asserted by the British; it does not necessarily deny that rebels before
achieving a degree of organization and success might be properly treated as "pirates" at international law
as well as at the municipal law of the defending sovereign.
141. See text at notes 40-52 above.
142. Some are cited in another context at note 129 above. The treaties were that with Algiers of 5
September 1795 (8 Stat. 133); Tripoli of 4 November 1796 (8 Stat. 154); and Tunis concluded on an
unspecified date in late August 1797 and 26 March 1799 (8 Stat. 157). The Treaty with Algiers was
superseded in June/July 1815 (8 Stat. 224), and that new treaty superseded in turn on 23-24 December 1816
(8 Stat. 244). The Treaty with Tunis was amended in a Convention dated 24 February 1824 (8 Stat. 298).
Treaty relations with Morocco were begun in January 1787 under the Articles of Confederation (1 Malloy
1206) and that Treaty remained in force for the new United States until superseded on 16 September 1836 (8
Stat. 484).
143. The confusion in thought represented by the glib use of the word "pirate" in connection with the
Barbary states began in the last decade of the eighteenth century and lasts until today. For an interesting
example of the rhetoric as it reached scholarly circles, see Paullin, Commodore John Rodgers, 1773-1838(1910,
republished by the United States Naval Institute 1967) 93-169. Commodore Rodgers was actively involved
in the "war" against the "pirates" of Tripoli that began in 1802 and ended in 1805. A parallel not involving
the word "pirate" might be drawn to treaty relations and "wars" with the American Indian tribes at this
time. All the early treaties between the United States and the Indian tribes of North America are collected
in volume 7 of the American Statutes at Large. The legal relationships reflected in the treaty form were
analyzed by Chief Justice Marshall in The Cherokee Nation v. The State of Georgia, 30 U.S. (5 Pet.) 1
(1831), concluding that "an Indian tribe or nation within the United States is not a foreign state, in the sense
of the constitution, and cannot maintain an action in the courts of the United States" (p. 183). A more
elaborate opinion resulting from an appeal by a citizen of Vermont from a conviction by a Georgia court
applying its law to events within Cherokee territory, is Worcester v. The State of Georgia, 31 U.S. (6 Pet.)
515 (1832). In that case Marshall found jurisdiction in the Supreme Court and overturned the conviction on
the ground that under the Constitution, treaties and federal statutes, the law of Georgia did not apply in the
territory set aside for the Cherokee nation by the law of the United States. In a later case, the Supreme
Court held that Federal legislation could supersede treaty stipulations with the Indian tribes, and there was
no violation of either American municipal law or international law in that event. The Cherokee Tobacco,
78 U.S. (11 Wall.) 616 (1871). The Supreme Court in that case held that the Indians' sole redress was to
appeal the questions of policy to the Congress (p. 621). It can be seen that while the legal label "pirate "was
not used, the result implied by the use of the term — the submerging of the organized society to which it was
attached to the legal system of its dominant neighbor — was achieved by interpretation of the Constitution
and the subordination of the branch of law governing "treaties" with the victim society to the overarching
law of the conqueror. In this way, the law of war could be argued to be not applicable to military relations
with the victim society, but only a special category of the municipal law of the expanding state seeking to
submerge its neighbor. Further analysis of this legal technique of engulfment as it applied to Indian tribes in
North America is beyond the scope of this work.
144. Cited at note 35 above.
145. See note 44 above. This provision, with minor changes, is still law in the United States. 18 U.S.
Code sec. 1652. It is reproduced in Appendix II. C below.
146. Stat. 175, Act of 3 March 1847, 29th Cong., 2d Sess., ch. 51. This statute is still law in the United
States. 18 U.S. Code sec. 1653. It is reproduced in Appendix II. C below.
147. 2 Moore, Digest 974, citing a letter dated 23 October 1794 by Edmund Randolph as Secretary of
State.
148. Id., citing a report dated 25 January 1806 by James Madison as Secretary of State.
149. The Act of 5 June 1794, 3rd Cong., 1st. Sess., ch. 50, 1 Stat. 381, was extended for two years by the
Act of 2 March 1797, 5th Cong., 1st Sess., ch. 1, 1 Stat. 523, and further extended indefinitely by the Act of
24 April 1800, 6th Cong., 2d Sess., ch. 35, 2 Stat. 54. All three statutes were repealed by the Act of 20 April
1818, 15th Cong., 1st Sess., ch. 88, 3 Stat. 447. Also replaced by the Act of 1818 was another Neutrality Act,
United States Law 195
An Act to Prevent Privateering Against Nations in Amity with, or Against Citizens of, the United States,
dated 14 June 1797, 5th Cong., 1st Sess., ch. 5, 1 Stat. 523. The Act of 1818 also repealed the Neutrality Act
of 3 March 1817, 14th Cong., 2d Sess., ch. 58, 3 Stat. 370. See note 175 below.
The Act of 1818 replaced these earlier statutes with a comprehensive Neutrality Act, preserving many of
the terms of the previous legislation. The current annotated edition of the U.S. Code traces the provisions
of 18 U.S. Code sees. 961 and 962 back to the Act of 1794. The language of sees. 958 and 959 also seems to
have had its origin then. It would be tedious in this place to attempt to trace back to original sources all the
terms in titles 18 and 22 of the U.S. Code that trace back to the Neutrality Acts of 1797-1818 and later.
150. John Paul Jones himself sailed under Russian commission against Turkey and Sweden as a regular
officer of the Russian Navy in 1788 while maintaining in full his American citizenship. 10 Dictionary of
American Biography 187. The Confederated American States were neutral in that conflict.
151. 2 Moore, Digest 976-977, memorandum of 16 March 1854 recording a conversation between the
American Minister (Ambassador) at London, James Buchanan, and the British Foreign Secretary, Lord
Clarendon.
152. Id. Buchanan does not appear to have cited the cases he had in mind.
153. See text at notes 81-83 above. That was the case in which section 8 of the Act of 1790 was construed
to apply to foreigners acknowledging no state authority and attacking all victims indiscriminately, even if
none of the immediate victims was American. Its logic rested on the Zouche-Blackstone-Story conception
of the "law of nations."
154. Of course, in a sense the issues arose much earlier, in the licensing of privateers and the
commissioning of Naval officers like John Paul Jones to raid British shipping during the revolution, when in
British contemplation the American states and Continental Congress lacked legal authority to issue
commissions without the express approval of the Crown. But Jones was not caught and there is no record of
any American privateers actually being tried for "piracy" by an English court. See text at notes 138-140
above.
155. U.S. Constitution, Article I, sec. 8, cl. 11.
156. 5th Cong., 2d Sess., ch. 67, 1 Stat. 578. This American municipal legislation was not binding in
France or on the French state as a matter of international law — the law between states. Presumably France
and the United States Congress speaking for the entire union differed at this point as to the continued force
of the alliance of 1778 (1 Malloy 479) and the Convention of 14 November 1788 (id. 490), which was
formally ratified in 1790, after the new Constitution had gone into effect. The United States Supreme
Court held in 1801 that the Act of 7 July 1798 abrogated this latter Convention as far as the United States
was concerned even if France disagreed. Talbot v. Seeman, 5 U.S. (2 L. Ed.) 15, 1 Cranch 1 (1801).
157. Act of 9 July 1798, 5th Cong., 2d Sess., ch. 68, 1 Stat. 578.
158. See the classification system of Henry Marten, at note 11-43 above.
159. 1 AG 49. As I read the penultimate quoted sentence an American acting against the United States
with or without a French commission would be committing "treason;" a foreigner within the United
States would be committing treason unless he had a French commission, in which case he would be a lawful
combatant.
160. See text at note 52 above. Perhaps Pinckney's Treaty was disregarded because Marshall foresaw the
problems that became evident in 1821. See text at notes 193-197 below.
161. U.S. v. Hutchings, 26 Fed. Cas. 440, No. 15,429 (1817) at pp. 441-442.
162. See text at note 35 above.
163. U.S. v. Palmer et al. cited note 62 above, at p. 636-637.
164. Id. at p. 641-624. See text at note 78 above.
165. Id., dissent by Johnson 636 sq. at p. 641.
166. Id. 643, quoted in text at note 79 above.
167. Id. 635.
168. Id. 643-644.
169. Obviously, this result was identical to that reached by Englishjurists by 1729. See text at note 11-47
above. From this point on, it seems clear that the classification of "pirate" for a person depredating at sea
without the license of a recognized government was regarded as coming from specific treaty law or from
municipal law applicable to nationals or purported nationals of the depredator's state only. No cases
indicating a contrary view have been found, and the theoretical writings making broader assertions of the
requirement of a license contain no argument or precedent beyond those fully considered above. Cf.
Supreme Court's decision (by Justice Henry Livingston) in thejosepha Seconda discussed in the text at notes
198-200 below.
170. Cited at note 149 above.
171. Id., p. 384. See note 149 above.
172. 1 AG 35 at 36. The opinion is dated 20 January 1796. The addressee is not specified; presumably it
was Secretary of State Pickering.
173. 1 AG 181 at 182. William Wirt to Elias Glenn, opinion dated 6 November 1818.
196 The Law of Piracy
174. Wirt cited Vattel, op. cit. note 11-137 above, Book III, ch. ii, sec. 15: "[N]o one may recruit soldiers
in a foreign country without the permission of the sovereign [personne nepeut en enroller en pays etranger, sans la
permission du Souuerain]."
175. Cited and placed in context at note 149 above. The quoted language is in the Act of 3 March 1817
and is repeated with a minor change in section 3 of the Act of 20 April 1818 that repealed the Act of 1817.
176. Similar limitations appear in the replacement statute of 1818.
177. Walker Lewis, John Quincy Adams and the Baltimore "Pirates," 67 Am. Bar Assoc. Journal 1011
(1981) at 1013. 1 am grateful to Professor Edward Gordon of Albany Law School and The Fletcher School of
Law & Diplomacy for bringing this article to my attention. Apparently, the outcome of the case continued
to rankle in the mind of John Quincy Adams. As Secretary of State in the Monroe Administration and
author of the parts of Monroe's State of the Union Address announcing the Monroe Doctrine on 2
December 1823, he was probably responsible for the reiteration of Executive dominance over what the
courts might call "piracy" by referring to both commissioned and "unlicensed" piracies being suppressed
by American Naval action:
Although our expedition, cooperating with an invigorated administration of the
government of the island of Cuba, and with the corresponding active exertions of a British
naval force in the same seas, have almost entirely destroyed the unlicensed piracies [emphasis
added] from that island, the success of our exertions has not been equally effectual to
suppress the same crime, under other pretenses and colors, in the neighborhood of Porto
Rico. They have been committed there under the abusive issue of Spanish commissions. At
an early period of the present year remonstrances were made to the governor of that island,
by an agent who was sent for the purpose, against those outrages on the peaceful commerce
of the United States, of which many had occurred.
2 J. Richardson, ed. , Messages and Papers of the Presidents (1896, 1910) 776 at 783. It seems notable that both acts
done unlicensed and acts done under "the abusive issue of" "commissions" are denominated "piracies,"
but that their legal results differ; the former were regarded as subject to immediate political action by the
Navy, and the latter as subject to diplomatic remonstrance only, in the first instance. Despite the use of the
word "crime," there is no mention of tribunals or their jurisdictional and substantive problems. This
approach can be usefully compared with the British approach at the same period, when the word "pirate"
was changing meaning and becoming a legal justification for political action in disregard of municipal
criminal law and in increasing disregard of what had been thought to be the international law on the
subject. See chapter IV below. I am indebted to my colleague, Professor Alan Henrikson of the Fletcher
School of Law & Diplomacy, for bringing this paragraph of President Monroe's "Doctrine" speech to my
attention.
178. Text at notes 53 sq. above.
179. See text at note 35 above.
180. U.S. v. Jones, 3 Washington 209 (1813).
181. Washington called it the Kyd case and cited 5 State Trials 313. No such case appears in How. St. Tr.
(which was not in any event published until 1816) at that place, but from the context it seems clear that
Washington was referring to the Kidd case rehearsed at length in chapter II above as it was reported in
some earlier compilation.
182. U.S. v. Jones at p. 216. Of course, the Kidd case was decided not by Common Law but by an
Admiralty commission using Common Law procedures under the Act of 1536. See chapter II above.
183. Id., p. 215, 220. Cp. Story's naturalist expansion of the law he asserted to be the international law of
"piracy" in U.S. v. Tully and Dalton discussed in the text at notes 54-59 above. The precise language of the
Act is in the text at note 35 above: "... murder or robbery, or any other offence which if committed within
the body of a county, would by the laws of the United States be punishable with death." Story had
expanded another clause of the definition relating to "piratically or feloniously" running away with a ship
to include such running away even without the physical putting into fear that was necessary to meet the
English Common Law of "robbery" definition normally used in English Admiralty courts. The Common
Law definition of "felony " is complex: "Embezzlement" was not a felony, but a taking "animofurandi" by
anybody not lawfully possessed could be. See 1 Hale, Pleas of the Crown (1685 ed.) 61-62. See notes 1-134,
1-165 and 11-49 above.
184. U.S. v.Jones, p. 223.
185. See text at notes 91-96 above.
186. See note 149 above. The Act of 20 April 1818 was in force in 1820.
187. Presumably under the act of 1790, section 9. See notes 44, 135 and 18 U.S. Code sec. 1652 in
Appendix II. C. below. U.S. v. Griffen and Brailsford, 18 U.S. (5 Wheaton) 184 (1820) at 204-205.
188. U.S. v. Holmes et al., 18 U.S. (5 Wheaton) 412 (1820).
189. Cited above at note 81.
United States Law 197
190. U.S. v. Holmes at pp. 419-420. The last phrase, "any government whatsoever, " seems to imply that
the Buenos Ayres authorities would have been taken to be empowered legally to issue a commission, but
the court believed that the jury might find that the depredation had occurred regardless of it. The position
taken was essentially the same as in U.S. v. Klintock a few months earlier. See text at notes 81-83 above.
191. Wheaton cited for this only the letter by Jenkins analyzed at notes 11-73 sq. above.
192. Wheaton, Elements of International Law (Text of 1836 with Dana's commentary of 1866 and additional
commentary by George Grafton Wilson) (CECIL 1936) sees. 124-125 at p. 162-164. Wheaton's view was by
1836 somewhat narrower than that expressed in his comment on U.S. v. Wiltberger analyzed in the text at
note 74 above.
193. Cited at note 149 above.
194. See text at note 52 above.
195. Cited at note 149 above.
196. The case was remanded to the Circuit Court for further proceedings on that point.
197. The Bello Corrunes, 19 U.S. (6 Wheaton) 152 (1821) at 171.
198. The Josefa Segunda, 18 U.S. (5 Wheaton) 338 (1820).
199. Id. at p. 358.
200. Id.
201. 20 U.S. (7 Wheaton) 283 (1822).
202. Id. 337.
203. See note 52 and text at notes 194 and 195 above. Not only was Chaytor's nationality unclear, and
thus his being a "citizen of the United States" within the terms of article 14 doubtful, but Story, apparently
erroneously, categorized the Independencia as a public warship of Buenos Ayres and not a mere privateer. Id.
346.
204. Id. 348-349.
205. Id. 355.
206. The Hercules, cited note 117 above, at 1519.
207. Id. 1518-1519.
208. See text at notes 1-170 to 1-172 above.
209. The Marianna Flora, 24 U.S. (11 Wheaton) 1 (1826) at p. 41.
210. The Palmyra, 25 U.S. (12 Wheaton) 1 (1827). Story did not speculate as to whether France might
have had a valid claim against Spain for what he apparently conceived to be a violation of the laws of
maritime warfare.
211. Statute of 3 March 1819, 15th Cong., 2d Sess., ch. 77 sec. 2, 3 Stat. 510 at pp. 512-513, extended by
the statute of 15 May 1820, 16th Cong., 1st Sess., ch. 113 sec. 1,3 Stat. 600. Story refers to them as chs. 75 and
112 respectively but there seems to be no doubt as to the language to which he was referring.
212. The Palmyra at 16-17.
213. Id. 16.
214. U.S. v. Kessler (Circ. Ct., D. Penn.) 26 Fed. Cas. 766, No. 15,528 (1829).
215. Id. 772.
216. Id. 114.
217. U.S. v. Brig Malek Adhel, cited at note 106 above, at 1 Deak 58-59.
218. Id., 1 Deak 59.
219. Id. 64-65.
220. See text in note 44 and in text at note 145 above. Section 9 of the Act applies only to "any citizen" of
the United States. Since it directs treatment as a "pirate" to any citizen who commits "piracy" or
"robbery" against any other American citizen on the high seas "under color of any commission from any
foreign Prince or State," the charge would stick even if there were no legal question of the capacity of the
revolutionary government of Texas to issue such a commission. Of course, if there were no valid
commission, section 8 of the Act of 1790, or section 5 of the Act of 1819, would apply and the Americans
would have been "pirates" as far as the law of the United States was concerned. Section 8 of the Act of 1790
is quoted in pertinent part at note 35 above. The Act of 1819 is reproduced in full in Appendix II. A below.
221. 3 AG 120 at pp. 121-122, opinion dated 17 May 1836.
222. Id., p. 122.
223. Id.
224. Accessory Transit Co. Claim, 2 Moore, International Arbitrations . . . 1551 (1898) at p. 1561.
225. It is highly relevant to an understanding of such later cases as the Delagoa Bay Arbitration, in which
a Swiss arbitral tribunal reluctantly held itself to be bound by the terms of an arbitral compromis to accord to
British and American investors in a Portuguese Corporation in Mozambique the very protection refused to
American investors in Nicaragua in this case. See 5 Parry, ed., British Digest of International Law 535 at 560.
The literature on the Delagoa Bay Arbitration is voluminous and seems to be comprised mostly of
claimants' arguments that the compromis forced on Portugal represents a better expression of the underlying
natural law protecting investors than the constitutional phases of the legal order protecting national
198 The Law of Piracy
discretion with regard to national corporations in which foreigners have invested. The degree to which the
international legal order gives an investor's state standing to protect investments made through companies
of a nationalizing state, or a third state, is still a matter of considerable dispute. See The Barcelona
Traction, Light and Power Company Case, (Belgium v. Spain), I.C.J. Reports 1970 1.
226. Accessory Transit Co. Claim, cited note 224 above. Quotations are from p. 1561-1563, italicized
words sic.
227. Letter from Fox to Webster, 12 March 1841, 29 BFSP 1126 at 1127. This was the beginning of the
famous correspondence in which Daniel Webster first formulated the phrase that has been taken to set
forth the general international law of self-defense. It involved a band of British and Americans in a ship, the
Caroline, planning a raid across the Niagara River from the New York shore. A British expedition raided
the Caroline first in "self-defense" and sent her flaming over the falls. See 2 Moore, Digest 409-414.
228. Letter from Webster to Fox, 24 April 1841, 29 BFSP 1129 at 1135.
229. Id.
230. 12 Stat. 1258-1259. Proclamations No. 4 and 5.
231 . The history of the word "efficient" in this context is complex and beyond the scope of this study. It
reflects most immediately the language of the Declaration of Paris of 16 April 1856 by which 51 parties,
including all the major European maritime states but not the United States, agreed that "Blockades, in
order to be binding, must be effective, that is to say, maintained by a force sufficient really to prevent
access to the coast of the enemy." The American refusal to accept the Declaration went to other points
than this. Roberts and Guelff, Documents on the Laws of War (1982) 24-27.
232. 12 Stat. 255 sq., 37th Cong., 1st Sess., ch. 3 sec. 4 at p. 256.
233. Id. sec. 5 at p. 257.
234. This provision of the Constitution is cited at note 155 above. Its relationship to definitions of
"piracy" was not considered at the Constitutional Convention of 1787 as far as available records show.
235. The Proclamation of 19 April recites that "[A] combination of persons, engaged in such
insurrection, have threatened to grant pretended letters of marque to authorize the bearers thereof to
commit assaults on the lives, vessels, and property of good citizens of the country lawfully engaged in
commerce on the high seas." Proclamation No. 4 cited at note 230 above. The Proclamation seems to
assume that the Confederate States' authorities had no legal powers at all.
236. The Prize Cases, 67 U.S. (2 Black) 635 (1862).
237. He was joined by Justices James Wayne of Georgia, Noah Swayne of Ohio, Samuel Miller of Iowa
and David Davis of Illinois.
238. Op. cit. note 236 at pp. 666, 669.
239. Id. 669, citing the Santissima Trinidad discussed in text at notes 201 sq. above.
240. Id. 673.
241. Id.
242. That question created serious difficulties between the Union and Great Britain, when an American
warship exercising belligerent rights to interdict contraband on neutral ships on the high seas removed as
such "contraband" from the "Trent," a British ship, two Confederate emissaries, James Murray Mason
and John Slidell. They were released after strenous British protest regarding the belligerent right of the
Confederacy to send representatives abroad with diplomatic status, even if not received as the
representatives of a "state" by any host government, and the impermissability of the Union exercising
"belligerent" rights against neutrals while denying that a legal status of "belligerency" existed which
would endow the other side with symmetrical rights. 7 Moore, Digest 626-630, 768-779; Adams, The
Education of Henry Adams (1907-1918) 119-127. The Union Government (Secretary of State Seward) quickly
apologized to Great Britain on the ground that even if there were a status of belligerency, this capture
would have gone too far because there was no Prize court condemnation of Mason and Slidell as
contraband. Mason and Slidell were released, thus implying the British were right, but avoiding a clear
resolution of the labeling dilemma.
243. The Prize Cases, cited note 236 above, 647-680. There is much interesting detail omitted concerning
the law of blockade, but that is not the subject of this study. The release of the Crenshaw's cargo seems to
confuse the law of blockade with the law permitting belligerent interdiction of only enemy property and
neutral or friendly contraband on high seas.
244. The others joining with Justice Nelson were Roger Taney of Maryland (the Chief Justice and
author of the Dred Scott decision), John Catron of Tennessee and Nathan Clifford of Maine.
245. The Prize Cases, cited note 236 above, 685-698.
246. Dole v. New England Mutual Marine Ins. Co., 88 Mass. (6 Allen) 373 (1863), 18 Deak 301.
247. Id. 309-310.
248. Dole v. Merchants' Mutual Ins. Co., 51 Me. 465 (1863), 18 Deak 314.
249. Id. 318, 326. Six judges concurred in the majority decision. Two dissented "holding that the taking
was piratical, but not a capture ... as understood in contracts of insurance." Id. 326.
250. Fifield v. Insurance Co. of State of Pennsylvania, 47 Pa. 166 (1864), 18 Deak 327.
United States Law 199
251. Id. 329.
252. Id. 332.
253. Id. 332-333. See also 2 Moore, Digest, 1082-1083.
254. Id. 333.
255. See text at note 253 above. For a bit more on the incident, see 2 Moore, Digest 1082-1083, where it is
also noted that problems of third countries classifying Confederate commissioners as "privateers" led the
Confederacy to place all its raiders under the command of regularly commissioned Confederate Navy
officers. Those problems did not relate to "recognition," or they would have survived the switch in
subordination. They related instead to the terms of the 1856 Paris Declaration, cited at note 231 above,
under which it had been agreed by the signatories (not including the United States) that "Privateering is,
and remains, abolished." The Confederate States were obviously not in a political position that would
enable them to carry on the diplomatic correspondence necessary to contest the application to them of this
statement of general international law ("and remains") regardless of the arguments available to the United
States and the Confederate States on the point.
256. 2 Moore, Digest 1079-1080.
257. The jury nonetheless found him guilty; Burley was either permitted to escape or to forfeit a small
bail (the facts are not clear). 2 Moore, Digest 1081-1082.
258. 30 Fed. Cas. 1049, No. 18,277 (16 October 1861).
259. Id. 1049-1050.
260. Cited above at notes 35, 87 (extending the Act of 1819, cited at note 85) and 146.
261. U.S. v. Baker and Others (1861), 5 Blatchford, Cases in Prize 6 (1866) at 12, 14.
262. Id. 14.
263. Id. 15.
264. In re Tivnan and others, 5 Best and Smith 645 (1864). Lauterpacht, Recognition in International Law
(1947) 302 note 3 refers to this case as In re Ternan and Others, citing 33 L.J.M.C. 201. It is not known
whether the difference in name is an error by Best & Smith, the Law Journal for Maritime Cases, or
Lauterpacht himself. 2 Moore, Digest 1080 refers to it as In re Tivnan.
265. 93 CTS 415; the treaty had been enacted as statute law in England by 6 & 7 Vict. c. 76 (1843).
266. Both England and the United States restrict the powers of their respective executives to
"extradite" anybody for anything to those situations in which the executive authorities are authorized by
municipal law under the respective constitutions to seize and transfer custody of an individual. 6
Whiteman, Digest of International Law (1968) 727 sq..
267. See above at notes 11-32, 111-44.
268. In re Tivnan, op. cit. note 264 above, at 685.
269. Id. 686 at 689 (Blackburn), 690-696 (Shee).
270. Id. 675 at 679-681.
271. U.S. v. Pedro Gilbert & Others, cited at note 69 above.
272. An identical result was reached in a Canadian case in 1863, the Chesapeake, 2 Moore, Digest 1080-1081.
273. Ford v. Surget, 97 U.S. 594 (1878). As a matter of executive interpretation, within the United
States, the decision was made by 1872 not to try the Confederate privateers, including Captain Semmes of
the Alabama, as pirates, at least in part on the ground that the blockade of 1861 had established a status of
belligerency with which the legal notion of "piracy" was considered incompatible. 2 Moore, Digest
1082-1083.
274. Ford v. Surget, p. 605.
275. Id. 608.
276. Id. 618-620, citing the two Dole cases and the Fifield case discussed briefly at notes 246-254 above,
and, among others: Dole v. New England Ins. Co., 2 Cliff. 394; Planters' Bank v. Union Bank, 83 U.S. (16
Wall.) 495 (1872); Mauran v. Insurance Co., 73 U.S. (6 Wall.) 1 (1868), 17 Deak 408; Monongahela Ins. Co.
v. Chester, 43 Pa. St. 49; Hamilton v. Dillin, 88 U.S. (21 Wall.) 78 (1875); and Horn v. Lockhart, 84 U.S. (17
Wall.) 578 (1873).
277. Ford v. Surget, cited note 273 above, 622.
278. Dana was no stranger to the perils of navigation. In his great narrative of adventure as a sailor in
1834 he mentions outrunning "a small clipper-built brig with a black hull . . . armed, and full of men, and
[who] showed no colours" in the South Atlantic about halfway between the Cape Verde Islands and Cape
San Roque (Brazil). Dana, Two Years Before the Mast (1840) (Enlarged ed. 1869, Everyman reprint 1969)
16-17.
279. Wheaton, op. cit. note 192 above.
280. Id. 164 note 84 at p. 168.
281. 2 Moore, Digest 1086.
282. See note 261 above.
283. 2 Moore, Digest 1087.
284. Id. 1088.
200 The Law of Piracy
285. The Ambrose Light, 24 F. 408 (S.D. N.Y. 1885), 18 Deak 112.
286. Id. 114.
287. Id. 117.
288. Cf. 2 Moore, Digest 1098-1099.
289. The " positivist" solution to the problem of "recognition" or "non-recognition" reflecting
political interests rather than underlying perceptions of law motivating actual state behavior, evidenced
well in the Union's giving captured Confederate soldiers and sea raiders treatment as prisoners of war, while
withholding the formal grant of that status and calling them traitors and "pirates," did not come until the
20th century. It is implicit in the reasoning of William Howard Taft as Arbitrator between Great Britain
and Costa Rica in the Tinoco Arbitration (1923), 18 AJIL 147 (1924), holding the British refusal to
"recognize" Tinoco as the government of Costa Rica for political reasons did not derogate from the legal
effect of British acts implying acceptance of Tinoco 's position in Costa Rica. It is explicit in Kelsen's clear
separation of "recognition" as a political act from "recognition" as a legal act. Kelsen, Recognition in
International Law — Theoretical Observations, 35 AJIL 605 (1941). It is possible to go even further to
distinguish "recognition" as a moral act from the other spheres. But that brings us to a realm of discussion
unnecessary to enter in this study.
201
IV
British Practice in the
Nineteenth Century
Eurocentrism and British Imperial Law
British sea power emerging from the Napoleonic Wars so dominated
international sea commerce that it is difficult throughout the
nineteenth century to distinguish British interpretations of international law
uttered for the purposes of self-justification and adversary argument from
statements of international law persuasive on all states participating in the
international legal order as defined in Europe. 1
It is consistent with the facts to classify the British assertions of law as
persuasive statements of true international law, acquiesced in by other states
where not protested and, in any event, becoming the basis for a sort of stable
order eventually accepted by statesmen generally as compelled by interna-
tional law. It is equally consistent with the facts to classify the British
assertions as mere adversary arguments resented and at times protested by
other states (including non-European political societies treated for many
purposes as states, although not conceded much more than the formal title and
the legal capacity to conclude disadvantageous treaties) 2 but not pressed for
political reasons irrelevant to the apprehensions of law held by those
statesmen and their societies regardless of the British arguments and military
power. It is even possible consistently with the facts to classify the British
dominion over the seas as a kind of effective occupation in the sense argued in
the 17th century by Grotius, 3 and British assertions of "international law"
being merely a British municipal law classification of that part of British
municipal law that was determined by the Crown or by Parliament in parts of
the British dominions under the jurisdiction of the Admiral, excluding the
ordinary colonial or Common Law courts. 4
Whatever the classification of British views, legal or political, reflections
of true international law or merely a British interpretation of that law;
reflections of the law conceived by the British to bind and restrict the actions
of all states on the basis of their sovereign equality, or conceived by the
British to endow themselves with legislative and executive authority to
declare and enforce rules in a way not permissible to other states; the British
202 The Law of Piracy
actions and justifications have been accepted by most European scholars as
highly persuasive regarding the law and as views and state practices that
cannot be disregarded, even if not fully determinative, in any analysis of the
public international law relating to "piracy" in the nineteenth century.
As noted above, 5 by 1819 the leading British Admiralty judge of the time,
Sir William Scott, Lord Stowell, regarded "piracy" in the criminal law sense
of "robbery within the jurisdiction of the Admiralty courts" as an
anachronism, applying the word for the purposes of a property adjudication
only. In another sense, to justify political action, the word was at that time in
England gaining increasing currency.
The transition from word of art in a property law and a criminal law
context to a word used to justify merely political action in modern times
seems to have begun in England with the series of statutes beginning in 1777
by which American privateers were sought to be called "pirates," and no
serious legal consequences flowed from that labeling. 6 In form, the statute of
1777 recited that "acts of treason and piracy" had been committed upon the
ships and goods of British subjects and that persons charged with "such
treasons and felonies" had been taken into custody. It authorized their
detention without bail, and forbade their being tried "without order from his
Majesty's most honourable privy council. " In fact, nobody was executed as a
"pirate" under this statute or its successors, and all prisoners were ultimately
exchanged or released. 7
In the United Kingdom as in the United States in the 1780s to 1820s 8 there
were many rhetorical references to the Barbary states as "piratical." The
legal meaning of these references was resolved in a series of cases all
concluding that the Barbary states were "states" in the international legal
order. 9 Nonetheless, in a series of incidents during the nineteenth century,
Great Britain found itself for various political, economic, historical and
cultural reasons needing legal labels to justify action short of war against
foreigners interfering with British shipping. British military dominance of
the seas, and the spreading notion that the forms of sovereignty that might be
possessed by non-European societies (whether denominated "states" or not
by European jurists and statesmen) should not be permitted to interfere with
the natural law of property or trade, led to a further assumption by Great
Britain of a legal authority to protect shipping lanes in general, thus third
country shipping indirectly; eliminating the need for direct injury to a British
flag vessel or national to justify military action. Such military action could
then be seen either as an option of policy unfettered by the usual legal
restraints on the decision to go to war both in municipal law and international
law, or as a mere enforcement action by a "policeman" of the international
order, or even by a "policeman" of the British legal order as it was extended
to all seas for the purposes of securing universal "rights" to commerce as
those "rights" were perceived by British lawmakers. This mixture of motives
British 19th Century Practice 203
and political, economic and legal rationales was covered by a revival of the
label "piracy" as a basis for military action quite distinct from the municipal
criminal law and Admiralty law property usages historically rooted in
English law.
In the international law classifications, the word "piracy" had by the
mid-eighteenth century dropped out of serious usage. Christian Wolff, a
prodigy born in 1679 in Breslau (now Wroclau, Poland) and making his career
in the German principalities of the Holy Roman Empire, did not use the word.
He concluded that "if any nation desires to restrain another from the use of
navigating and fishing in the open sea, the latter nation has just [legal?] cause
of war." 10 In 1758, Emmerich de Vattel, a Swiss jurist writing what was to
prove the most popular treatise on international law of the first two or three
decades of the nineteenth century, came to the same conclusion: "Since, then,
the right of navigating and fishing on the high seas is common to all men, the
Nation which undertakes to exclude another from that advantage does it an
injury and gives just cause for war." 11 As has been seen, the first two wars of
the United States, that with France in 1798-1800 and that with Tripoli in
1802-1805, were naval wars with no declarations of war — rather a
continuation through public action of the privateering engagements of the
previous centuries that had been resorted to in place of a public "war." The
distinction between a "just cause of war" and military action to enforce
"rights" without the formalities of a legal status of "war" (but with all the
legal results flowing regardless of formal "status") was nil by the turn of the
nineteenth century in Europe, including the North Atlantic and Mediter-
ranean. It is in this context that the shift in terminology from "war between
states" (even without declarations) to "military action to suppress piracy"
must be evaluated. 12
"Pirates" as Permanent Enemies in British Imperial Law
The Legal Rationale for Naval Action. It was noted above 13 that the
British Foreign Minister at the European Conference of Aix-la-Chapelle in
1818, Lord Castlereagh, had tried unsuccessfully to appeal to the analogy
between "piracy" and the slave trade to justify British enforcement action at
sea against slave traders of countries who had by their municipal law
abolished the trade. His argument was based on the naturalist conception that
if a law is common to the municipal orders of all civilized states, then that law
reflects a natural law which exists independently of state boundaries. From
this premise he argued that legal "standing" existed in all states to enforce the
universal "law of nations;" thus that the British Navy could arrest and try a
Portuguese or French slave trader not for violation of English law (which did
not apply on a foreign ship on the high seas), or the law of the flag state (which
the British had no legal power to enforce), but international law, of which the
"law of nations" was conceived to be a part. 14
204 The Law of Piracy
As has been seen, this argument was rejected by France, Portugal and the
leading British Admiralty judge of the time, Sir William Scott. 15 Although
Castlereagh's approach was adopted by Justice Joseph Story in the United
States, it was rejected by the Supreme Court under Chief Justice John
Marshall, who felt the furthest the powers of a Court established by the
American Constitution could extend in the absence of a link of territory or
nationality to provide "standing," was to the acts of "stateless" "pirates" 16
unless an Act of Congress required a broader reach by the Court, in which
case the political dispute that was likely to result with other sovereigns
protecting their own jurisdiction would best be handled by the political arms
of government while the Court did what the Congress had directed it to do. It
was then seen that the Congress never did direct the Court to act in a way that
would raise the problem with a foreign sovereign; that in practice the United
States restricted its jurisdictional claims to narrower limits than Story and
other natural law theorists might assert.
But the limits the courts might feel restricted the legal powers of their
sovereigns, and the limits that legislators apparently felt it wise to adopt in
passing legislation of general character, were not always the limits that active
politicians would adopt in suggesting arguments to justify action against
foreigners that was otherwise felt to be desirable. If Castlereagh could
eliminate the slave trade on foreign vessels by analogizing that trade to
"piracy" and then asserting universal policing jurisdiction over "piracy" as
part of the jus gentium "law of nations," and the "law of nations" could be
construed to be part of the law between sovereigns, jus inter gentes , in disregard
of the distinction drawn by Zouche, 17 a rationale would have been achieved
by which naval action could be released from the normal rules of "standing;"
the British interpretation of British law, as part of the "law of nations," could
become the basis for British action against foreigners abroad. Unless a
particular foreign country chose as a matter of policy to deny the existence of
the rule of substantive law on the basis of which the British acted, there would
be no basis for diplomatic correspondence, no claims, and no problem arising
out of the law of "standing." The British Navy would rule the seas as far as
foreign individuals were concerned. The logic of this position must have
seemed very attractive to British statesmen of the period immediately
following the fall of Napoleon regardless of the underlying legal problems
perceived by the courts, legislators, and foreign governments.
The transition of the word "piracy" into the military/political vocabulary
of British statesmen took at first a very odd form — the extension to "piracy"
of legislation that had been aimed solely at encouraging the British Navy to
fight Napoleon's warships.
The Bounty Legislation of 1825 Retroactive to 1820. At the beginning of
the nineteenth century, the distinction was small between commissioned
vessels that were part of a permanent military force, a navy, on the one hand,
British 19th Century Practice 205
and private vessels commissioned to act for personal profit under letters of
marque and reprisal subject to executive control in the issuance, cancellation
and bonding procedures 18 on the other hand. 19 Since the destruction of enemy
naval vessels did not lead to riches as capture of enemy merchant vessels did
through Prize proceedings, and naval engagements with armed men of war
involved human butchery of a sort that no sane person could voluntarily
submit to without a large inducement in glory or money or both; and not
enough men were mad enough to volunteer for it in the hope of glory alone, 20
Parliament in 1803 introduced a substantial money inducement. The Act of
1803 21 did not distinguish between navy vessels and privateers:
XXXVII. . . . That there shall be paid by the treasurer of his Majesty's navy upon bills
to be made forth by the commissioners of the navy . . . unto the officers, seamen,
marines, soldiers and others, who shall have been actually on board any of his Majesty's
ship or ships of war, or hired armed vessel or vessels, or of any privateer or privateers, at
the actual taking, sinking, burning, or otherwise destroying any ship or ships of war or
privateers belonging to the enemy . . . during the present war, five pounds for every man
who was living on board any ship or vessel so taken, sunk, burnt, or otherwise destroyed,
at the beginning of the attack or engagement between them . . . . 22
This statute was superseded two years later but the language of this section
was repeated verbatim in Section V of the new statute. 23
With the end of the war against France and the War of 1812 against the
United States, the main job of the British navy shifted to protection of the
growing maritime commerce of the expanding Empire. While navy duty
became less profitable, therefore, it also became less hazardous except where
there was armed interference with British ships which it was the function of
the navy to protect. Without reexamining the legal implications of the
situation, this new (or revived) sort of armed interference was denominated
"piracy" and in 1825 the head-money system was extended and vastly
increased to cover it:
That . . . there shall be paid by the Treasurer of His Majesty's Navy . . . unto the Officers,
Seamen, Marines, Soldiers and others, who shall have been actually on board any of His
Majesty's Ships or Vessels of War, or hired armed Ships, at the actual taking, sinking,
burning or otherwise destroying of any Ship, Vessel or Boat, manned by Pirates or
Persons engaged in Acts of Piracy . . . the Sum of Twenty Pounds for each and every such
piratical Person, either taken and secured or killed during the Attack on such piratical
Vessel, and the Sum of Five Pounds for each and every other Man of the Crew not taken
or killed who shall have been alive on board such Pirate Vessel at the beginning of the
Attack thereof. 24
Another provision of the Act required the return of property in the possession
of "pirates" to its former owners or proprietors after in rem proceedings in
Admiralty, and on the payment by the owners of one eighth of the value of the
property returned in lieu of salvage. 25 The bounty provision was made
retroactive to engagements after 1 January 1820.
206 The Law of Piracy
The Act does not require any adjudication of the criminality of anybody,
and seems to have merely continued the war-time legislation to cover acts
against "pirates" as if the Latin phrase about "pirates" being "hostes humani
generis" 26 were being read once again in a literal way to make of "pirates"
persons to whom the laws of war applied, or at least those parts of the laws of
war that were favorable to the British Navy.
Action under this statute was a major part of British imperial activity from
1825 to 1850 and the British seemed to assume they were legally at war with
all who obstructed the expansion of British hegemony, both on the high seas
and elsewhere. It is patently impossible to examine for legal and political
implications all the instances in which "suppression of piracy" became the
asserted basis for British naval action during that period, but a few instances
and British adjudications illustrating the changing conceptions of "piracy"
that are both evidenced by the Act and by actions under it are necessary.
Thus, in the narrative and analysis that follows, it should be borne in mind
that details regarding some Persian Gulf, Mediterranean and Southeast Asian
practice is not the only evidence of the political use of the word "pirate" and
its transition into the vocabulary of public international law with overtones
of municipal criminal law and maritime property law.
The New Law Applied
The East India Company in the Persian Gulf. It is possible that a major
reason for making the statute of 1825 retroactive to 1 January 1820 reflected
British political activities in the Persian Gulf. In 1806 the British established
formal relations with the Sheikh of the Qawasim, an Arab people in the
Persian Gulf. In the more or less standard history of the area written a century
later by a British scholar and published by the British Government of India
this interest was said to be the result of the "increase of piracy and lawlessness
at sea" in that area. 27 The formal relations were begun in a document in treaty
form between the British East India Company and the Sheikh in which the
word "pirate" or equivalent concept is not mentioned, nor is any
"lawlessness" or any indication what "law" was conceived to apply in the
area; the document is called an "Agreement" in the English translation. 28
On 6 and 8 January 1820 the British produced some more documents in an
attempt to stabilize the legal order of the Persian Gulf in a way that would
protect their shipping interests. The one that was clearly intended to be the
permanent commitment of the acceding Sheikhs to the relationships desired
by the British was in Arabic called by the same word that in 1806 had been
neutrally translated "Agreement." It was now translated "Contract." 29 The
Arabic word, like the English word "agreement," has no particular legal
implications. But the word "contract" in English implies the existence of a
legal order and legal obligations; indeed, the word "contract" is usually used
in English with regard to the municipal legal order and private relationships,
British 19th Century Practice 207
while the word "treaty" is usually used to label agreements between states
that are binding in the international legal order. Historically, this distinction
in implication between the words "contract" and "treaty" in English legal
documents was not as sharp as it is today, and even today the usage is not
entirely consistent. There seems to be no record of why the same Arabic word
was translated officially into two English words with differing connotations.
It is possible that a change in translators was all that was involved, except that
the new translator in 1820 used the word "treaty" in another group of
documents to be discussed below. It is probably incorrect to read excessive
legal subtlety into the translations made of an Arabic word in the Persian Gulf
by a British military officer in the employ of the East India Company in 1820,
but it is some sign of the translator's conception of political, and thus legal,
relationships between the Company as a creature of English law and the Arab
Sheikhdoms as political societies with which the Company had to deal. If the
Company were to deal with the Sheikhdoms as legally equal, then "contract"
must have seemed an appropriate term even though it implied subordination
of the Sheikhdoms to English law; just as the Company was wholly subject to
English law regardless of its also being subject to international law when it
acted for England abroad. But it is unclear whether the word "contract" in
this context was consciously intended to imply the subordination of the
Sheikhdoms to English municipal law as such, English municipal law in its
Imperial Law phase using the language of international law, or true
international law as it applies between equal sovereigns. 30 It is certain that
British officials at this period were familiar with Roman "imperial law" as an
aspect of Roman municipal law engulfing the "independent" societies of the
Roman world in "treaty" relationships that were wholly governed by the
interpretations of the Roman Senate and derived their legal force from
Roman conceptions of the legal order. 31
The "Contract" of 8 January 1820 is in treaty form. It provides:
Article 1. There shall be a cessation of plunder and piracy, by land and sea, on the part of
the Arabs, who are parties to the Contract, for ever.
Article 2. If any individual of the people of the Arabs contracting, shall attack any that
pass by land or sea, of any Nation whatsoever, in the way of plunder and piracy, and not
of acknowledged war, he shall be accounted an enemy of all mankind, and shall be held
to have forfeited both life and goods; and acknowledged war is that which is proclaimed,
avowed, and ordered by Government against Government, and the killing of men and
taking of goods, without proclamation, avowal, and the order of Government, is
plunder and piracy ....
Article 4. The pacificated Tribes shall all of them continue in their former relations, with
the exception that they shall be at peace with the British Government, and shall not fight
with each other . . .
208 The Law of Piracy
Article 7. If any tribe, or others, shall not desist from plunder and piracy, the friendly
Arabs shall act against them according to their ability and circumstances, and an
arrangement for this purpose shall take place between the friendly Arabs and the British
at the time when such plunder and piracy shall occur.
Article 8. The putting men to death after they have given up their arms is an act of piracy
and not of acknowledged war . . .
Article 9. The carrying off of slaves, men, women, or children from the coasts of Africa
or elsewhere, and the transporting them in vessels, is plunder and piracy, and the
friendly Arabs shall do nothing of this nature . . . 32
Pending their acceding to this agreement, other Persian Gulf Sheikdoms
agreed to various "preliminary treaties" at about the same time. 33 Five of
these treaties concluded on 6, 8, 9, 15 January and 5 February 1820 have
common articles under which the Arab Sheikhs agreed to surrender their
boats to a British General except for pearl fishery and fishing boats, yield up
"Indian prisoners" (presumably British Indian traders and Sepoy soldiers
under British command), and accept peace terms with the British as
"friendly" or "pacificated" Arabs. 34 One of the five, that with the
representative of two Sheikhs of Bahrein on 5 February 1820, instead of
mentioning the surrender of boats except for fisheries vessels, provides that
"the sale of any commodities which have been procured by means of plunder
and piracy," and the sale of supplies to "such persons as may be engaged in the
practice of plunder and piracy" shall be forbidden by the Sheikhs in Bahrein
or its dependencies, and that "if any of their people shall act contrary hereto,
it shall be equivalent to an act of piracy on the part of such individuals." 35
A sixth "preliminary treaty," with the Sheikh of "Aboo Dhebbee" on 11
January 1820, does not address Indian prisoners (perhaps there were none) or
fisheries, but seems to reflect an alliance in the struggle between the British
and Abu Dhabi:
Article 1. If in Aboo Dhebbee or any other of the places belonging to Sheikh Shahbout
there are any of the vessels of the piratical powers which have been attached or may be
hereafter attached by the General during the present war against the pirates, he
[presumably the Sheikh] shall deliver such vessels to the General. 36
As noted above, it is unclear precisely what the implications were of the
word for "treaty" and "contract" actually used in the Arabic texts, which
were the only texts the Sheikhs could read or have read to them with
understanding. Without more analysis than available documents make
possible at this time, it is wise to be cautious about far-reaching implications
from inferential evidence. But some implications can be drawn.
The British dominated the negotiation and controlled the translations
between English and Arabic. Evidence of this can be garnered from the
documents themselves. For example, the seal of Captain J. P. Thompson, 17th
Light Dragoons "and interpreter," appears in the place of the seal of Hussun
British 19th Century Practice 209
(sic; Hassun?) bin Ali, Sheikh of Zyah with an explanation: "The seal is
Captain Thompson's, as Sheikh Hassun bin Ali had not a seal at the time of
signature." 37
In only two of the "preliminary treaties" is "piracy" mentioned. The
treaty with Bahrein analogizes dealings with those who practice "plunder
and piracy" as "equivalent to an act of piracy." There is no definition of
"piracy" and no direct statement of the legal result of the label as used. It is, of
course, possible to speculate with some assurance that the word was being
used in a political sense implying a British intention to suppress by force
whatever the British determined unilaterally to be "piracy," and whether on
land or sea, and without any criminal or Admiralty proceedings in any court.
But evidence to support that speculation rests on more or less contempo-
raneous British actions and language elsewhere, which will be discussed
below.
More directly pertinent at this point is the distinction drawn between
"piracy" and "acknowledged war" in the "contract," and the clear
implication that there is no intermediate status between the two. Thus,
political motivation, the absence of the animo furandi required in British
municipal law before a criminal conviction of "piracy" could be obtained
before a Commission set up under the statute of 1536, was dropped from the
conception of "piracy" as a basis for military action. It fits the facts equally
well to regard the conception of "piracy" in this period as reflecting British
perceptions of true international law, British Imperial law as a branch of
British municipal law, or simply the unilateral assertion of a special set of
rules of law to govern British relations with Arab societies whether or not
part of general international law or some concept of British hegemony, or
even some disguised assertion of British dominion in the Persian Gulf
equivalent to the imperium exercised at sea although not overtly claimed as
such after 1801. 38
While it is easy to imagine the British attitudes towards the "freedom of
navigation" on the "high seas" in the early nineteenth century, and the
British role as trustee for world commerce, or proprietor of the commercial
world's "rights" against those who saw no natural law underpinning to
foreigners' asserted rights of trade and property, it is impossible to put those
feelings into legal terms acceptable to all and conformable to all statements of
judges and statesmen of the time. It is this impossibility of positing a legal
system capable of explaining the British actions and British rhetoric at the
same time that makes it best to treat the situation as fundamentally a matter
not of natural law, but of policy. Moreover, to the degree that positive law
arguments were posed against British actions, as at the Congress of Aix-la-
Chapelle in 1818, 39 the British arguments lost. It was only where confronting
societies at that time unable to frame their objections to British assertions of
"law" in terms of the Westphalian "constitution" of international society, or
210 The Law of Piracy
too weak to make those arguments heard against British military opposition,
that the British felt free to impose their views.
Another, rather more subtle, approach supports the contention that the
British, in using the word "piracy," were applying a British municipal law
conception; not the British municipal law of crimes within the jurisdiction of
the British Admiralty courts (although there remain overtones of that), but of
British unwritten constitutional law under which enforcement of some
"British Imperial law" was given to the navy by direct action rather than to
the British judiciary. That is in the distinction between British action by the
officials of the East India Company on the one hand, and British action by the
Royal Navy on the other. The Persian Gulf transactions were entered into on
the British side not by the diplomatic representatives of the government in
London, but by the military and administrative representatives of a mere
Chartered British Company. 40 The history of the Company and its
relationship to the Crown, the Parliament and the Courts of England is
beyond the scope of this study. 41 But it seems clear that major political and
legal results flowed from the distinction between the Company (and other
European Companies of equivalent status, such as the United Dutch East
India Company) and the home Government as the party concluding treaties
(or "contracts") with non-European governments. 42
Among the pertinent legal and political results was the placing in the hands
of the representatives of a military arm of a body organized under the law of
England for commerce, and which had not wholly lost its commercial
functions or traditions, responsibility for keeping open the sea lanes for that
commerce. The temptation to regard any political action by others that
obstructed the course of commerce as "illegal," or at least within the legal
powers of the Company officials to suppress, must have been enormous even
if unconscious. In view of the use of the word "piracy" in England to bring
about the legal results of treason in the 1690's, and the continuance of the
statute of 1700, 43 although clearly it was not applicable to foreign commerce
raiders in foreign waters, it is not surprising that the word "piracy" was felt
to have broader legal meanings than the strictly historical one in English law
relating to robbery within the jurisdiction of the Admiral.
An example of the spreading use of the word is implicit in the distinction
between the "preliminary treaties" and "contract" referring to "plunder and
piracy" as if something done by the ill-disciplined subjects of the various
"pacificated" Arab Sheikhs, and the status of the Sheikhs themselves. In the
treaty with Abu Dhabi there are references to "vessels of the piratical
powers" and the "present war against the pirates," implying that those
Sheikhs who did not come into treaty relations with the British were
themselves mere leaders of "pirate" bands. How there could be a "war"
against them when, in the "contract," it was asserted that a key legal
distinction existed between "piracy" and "war," is totally unclear. It might
British 19th Century Practice 211
be cynical, but still accurate in the light of this usage, to conclude that the
British Company's officials wanted the privileges of "war" themselves in the
struggles with the Arab Sheikhdoms and their military arms and unruly
merchants, but also wanted to deny the legal status of prisoners of war and
belligerent rights of search and seizure to those Arabs. The language is
reminiscent of the Roman conception of permanent war with "pirata" who
opposed the establishment of Roman hegemony in the Eastern Mediter-
ranean, 44 and it can be suggested in light of the remarks of Sir T.S. Raffles 45
that this coincidence is not accidental.
The British Navy in the Eastern Mediterranean Sea. Events in the
Mediterranean confirm this analysis. In January 1813, the British Foreign
Minister, Lord Castlereagh, sent William a Court as Envoy Extraordinary
and Minister Plenipotentiary on a "Special Mission to the Several Powers on
the Coast of Barbary . . . [to place] on a more permanent and satisfactory
footing the Relations between This Court [Great Britain], and the Respective
Sovereign States on that Coast." 46 Court was made subordinate to the
Principal Secretary of State for War, not for Foreign Affairs, although the
language of his instructions refers to the Barbary Coast societies as "States. " 47
It may be remembered that until this time, the British had maintained
relations for the previous 200 years with the rules of Algiers, Sallee, Tripoli
and Tunis on a consular level and had considered those societies to be "states"
capable through their own legal proceedings of changing title to vessels and
goods. 48 At the same time, in the complex history of the Barbary "states," a
constitutional relationship to the Ottoman Emperor was maintained by the
Barbary rulers.
While it might frequently have been in the Barbary rulers' interest to deny
that subordination from time to time, it was undoubtedly in their interest at
other times to emphasize it. 49 For example, as late as 27 September 1819 the
Dey of Tunis used the technical Ottoman legal position in the constitution of
Tunis as a basis for refusing to yield to European pressure seeking to get the
Tunisians to disarm their ships and pursue peaceful trade only (i.e., to allow
the Europeans to sail freely through waters historically claimed as within the
taxing jurisdiction of Tunis): "If a War should break out between any Power
and the Ottoman Porte, what shall We answer if she requires Us to arm Our
Vessels to assist her, as has always been the practice . . . ?" 50
Court's mission failed. In 1818, at Aix-la-Chapelle, the "allied Powers"
who had defeated and occupied Napoleon's France agreed to send an
international commission to repeat the British effort. It too failed. 51
Meantime, in 1816 Great Britain had sent Lord Exmouth with a military
expedition to Algiers to secure the Dey's agreement to new constitutional
arrangements with regard to some islands populated by ethnic Greeks, for
several centuries in the past part of the Ottoman Empire. The British sought
to establish a "protectorate" in the "Ionian Islands," and had achieved the
212 The Law of Piracy
agreement of their European allies in this endeavor at the Congress of
Vienna. 52 In a sense, Exmouth's expedition, which involved the bombardment
of Algiers, was too successful in that the Dey not only agreed to the new status
of the Ionian Islands, but also agreed to end "Christian slavery" in Algiers.
Ironically, the British position then, agreed to by the Dey, was that the law of
war should be applied with regard to Europeans taken by the privateers of
Algiers, who were thenceforth to "be treated ... as Prisoners of War, until
regularly exchanged according to European practice . . . " 53
Thus, in 1816, it was clearly the British position that Algiers was a state in
the international community capable of participating in the legal order of
Europe with regard to "war;" that it was not a mere "piratical" community.
The legal position adopted by British Admiralty courts 54 had thus been
translated to the area of public international law as a reflection of high policy.
France was unhappy with the continued independence of the Barbary states
as full members of the international community as defined by the public law
of Europe and, in 1827 instituted a blockade of Algiers, finally capturing the
city in accordance with the European conceptions of the law of war on 5 July
1830. 55 Except in polemical writings in Europe, the Barbary states throughout
the period were not treated as "piratical," but as "states."
The political pressures to find a rationale for naval activity against those
who, for whatever reason, interfered with British merchant shipping in the
Mediterranean Sea reached something of a pitch in the early 1820s, at about
the same time the British East India Company forces in the Persian Gulf began
to use the word "piracy" in connection with the activities of the Arab
Sheikhdoms there and the market in Bahrein. The parts of the Ottoman
Empire populated by ethnic Greeks had begun to assert a degree of
independence inconsistent with continued Turkish rule already in the second
decade of the nineteenth century and a "Protectorate " by Great Britain of the
"Ionian Islands" was established while unrest in the rest of the ethnic Greek
area increased. The Senate of the Ionian Islands on 7 June 1821 proclaimed the
"neutrality" of the Protectorate of the Ionian Islands in that struggle. 56 The
British High Commissioner in the Ionian Islands, Sir Frederick Adams, issued
a series of declarations between April and October of that year committing
the Ionian Islands as a political body to "non-interference. " 57 On 30 June 1821
Lord Bathurst, the British Colonial Secretary, instructed Sir Frederick
"against adopting any proceeding which can be construed as a violation of
that strict Neutrality which His Majesty has determined to observe . . . " 58 and
a formal Proclamation of Neutrality for the Ionian Islands was issued by the
High Commissioner on 7 October 1821. 59 Interestingly, there is no record of
any equivalent formal British announcement near this time although internal
British documents imply it. 60
Meantime, on 22 September 1821 a British firm had asked the Government
if it could sell arms to the Pasha of Egypt to defend one of his ships from attack
British 19th Century Practice 213
by rebels against Ottoman rule. 61 Lord Liverpool, the Prime Minister, 62
replied that the arms could also be used for attack, thus their sale would be
unwise in the view of the British Government, but he did not forbid it. 63
Apparently the question and the situation in the Ionian Islands Protectorate
produced a flurry of interest in the Cabinet; Dr. Christopher Robinson was
asked for a legal opinion about whether Greek insurgents operating at sea in
the Eastern Mediterranean should be regarded by the British as "pirates. " His
opinion was delivered on 4 October 1821:
[I]t would not be proper to consider Persons as Pirates who may be cruizing under a state
of alleged Hostilities, whether regular or irregular, provided their Intentions were in
fact satisfactorily distinguished from the mere predatory character of Piracy as
considered in Law. . . . [But since there is no regular Greek government or public law in
the area] I think it would be consistent with the Neutrality or forbearance that His
Majesty's Government might be disposed to use and practice under existing
Circumstances to instruct His Majesty's Cruizers to interpose by all amicable [sicl]
means, to protect the Ships of His Majesty's Subjects, or of the Ionian Islands under His
Majesty's protection, from being treated by such Cruizers as liable to all the restrictions
to which Neutral Commerce is required to submit in a state of War, between regular
and recognized Governments. — It may be a matter of discretion, on what Occasions and
to what extent this interposition should be authorized; But ... a reasonable limitation
of the arbitrary pretensions of such Cruizers, would be justified, and may perhaps be
found to be expedient for the protection of British Commerce in the Mediterranean. 64
Two aspects of this opinion seem noteworthy; (1) as a matter of standing, it
applies only to the protection of British commerce and does not relate at all to
the protection of Egyptian or other vessels; and (2) the classification "pirate"
seems to reflect English municipal criminal law conceptions and a continued
reluctance to intervene in the internal affairs of any other country by
questioning its licenses or even its very existence when the fact pattern
clearly involved public action by foreigners for political ends. Nonetheless,
the possibility was opened that as a matter of policy the British government
could intervene without violating public international law. The choice as to
whether to accord belligerent rights to the Greek irregular vessels was to be a
matter of policy only, and there is an implication that if a state of war was, for
political reasons, not recognized, or the legal capacity of the Greeks to license
privateers was not accepted, there would be no legal obstacle to British
intervention to suppress "piracy."
The British officials in London were apparently considering the options
open to "positivist" jurists: Whether the struggle between the Greek
"National Assembly" and the Government of Turkey was to be regarded as
belligerency in which both parties assumed symmetrical legal rights and
obligations and the British were "neutral," or the Greek vessels under
National Assembly license could be legally suppressed as "pirates" consistent
with British interest in the area; indeed, whether the law of "piracy"
required that suppression by "neutral" powers. Robinson's answer was that
214 The Law of Piracy
the labeling system to be adopted was a matter of policy, not law, and that the
international law regarding "piracy" did not require British suppressive
action against Greek insurgents.
A further, and more serious implication of this opinion exists when it is
read as part of a broader context. The Greek "National Assembly" declared
the independence of Greece from Ottoman rule on 13 January 1822, 65 and on
25 March of that year the new "Provisional Government" of Greece declared
a "blockade" of some Turkish ports. 66 The British Government seems to have
considered Great Britain "neutral" as if "belligerency" were the correct
legal status of relations between the Greek authorities and the Turkish
Government. By 30 April 1822 the British authorities were accepting as
legitimate the captures of neutral merchant vessels by privateers licensed by
Greek authorities pursuant to the blockade declaration of 25 March.
Merchant ships of the Ionian Islands themselves were not protected by the
British Navy. 67
Early the next year, Dr. Stephen Lushington was formally asked whether
the insurgents had a belligerent right to institute a legal blockade effective
against British neutral merchants, and rendered two opinions dated 29 May
and 26 June 1823. In the first he advised the Government that the Greek
authorities, although unrecognized, and the state of war being unrecognized
by the British government, nonetheless had the equivalent of belligerent
rights. Lushington had grave difficulties meshing this naturalist conclusion, in
which the law flowed from the facts in disregard o( the labels given or
withheld for policy reasons by the political branch of the British Government,
with the positivist orientation of his clients (the Government) and his own
inclinations. The legal tactics of the Greek privateers were ingenious:
[OJoccasionally to blockade the entrance to a port and when driven away by the
absolute appearance of a superior Turkish force . . . they quit that part of the Turkish
coast, and proceed off another port, where a similar conduct is pursued, so that it is
impossible for the British owner when he dispatches his vessel to know whether upon
her arrival at the port of destination, such port may be blockaded or not. 68
In the absence of formal notification and effectiveness maintained throughout
the period subject to notification of the legal "blockade," the blockade would
not be regarded as legal in a British Admiralty court. Nonetheless,
Lushington pointed out, it is regarded as legal in Greek courts. He concluded
that the British should "compel the Greeks to observe towards British
subjects the usages of legitimate warfare." 69 As to the status of the Greek
privateers and Greek courts themselves, Lushington divided the British
position into a recognition de facto but not de jure of the independence of the
Greek nation from Turkey, finding precedent in the British attitude towards
the former Spanish colonies in the Western Hemisphere. From this, he argued
that a blockade properly proclaimed and maintained by Greek forces would
be the exercise of belligerent rights justifying Greek confiscation of the
British 19th Century Practice 215
property and perhaps even imprisonment of the crew of British blockade-
runners. 70 He thus found himself in the same position that Gentili had
discovered more than two hundred years earlier and that the United States
was discovering at the same time (only to forget it in the emotion of the Civil
War in 1861): policy-makers cannot change the real world by manipulating
the labels. As Lushington wrote: "To apply the strict principles of the Law of
Nations to a state of things so anomalous [apparently meaning a state of
reality out of step with the legal labels affixed by policy-makers seeking to
use the Law of Nations to justify policy in disregard of reality], would, I
apprehend, tend only to mislead the parties interested, for these questions are
always mixed up with political considerations, and the practice will in some
degree differ from the theory." 71
Shortly after this opinion was rendered, on 6 June 1823 the Foreign Office
issued a general proclamation of British "neutrality" in all "hostilities . . .
between different states and countries in Europe and America" 72 and,
without mentioning British "neutrality" expressly, another proclamation
was made by the Foreign Office on 21 June 1823 that the British Government
"will treat the warfare between the Turks and the Greeks as legitimate
warfare." 73 In his opinion dated 26 June 1823, Lushington interpreted this
proclamation to be the positivist document finally meshing the world of law
with reality as a matter of British policy, and considered the rights and
obligations of British merchants in the Eastern Mediterranean as subject to
the law of neutrality under the Law of Nations as it might be applied in Greek
and Turkish Prize courts. He thus confirmed his earlier opinion, but on the
basis of law rather than policy in the mere guise of law.
Just a few days later, on 12 July 1823, the Foreign Minister, Lord Canning,
told the British Ambassador in Constantinople, Lord Strangford, that the
"blockade" had degenerated in some instances to lawless violence and
plunder, mentioning several examples of British remonstrances given
diplomatically to the Turkish Government on the ground of humanitarian
concern, and indicating that a British rescue of "wretched survivors" of a
defeated Turkish garrison at Napoli di Romani might have been an
"interference [of which] according to the strict laws of Neutrality, the
Greeks might, in their turn, have complained." 74
Things limped along with the British becoming more and more involved
in the politics of the Ionian Islands, the Greek rebellion, and British trading
interests, attempting to apply the law of war to the situation. This approach
was condemned by Prince Metternich of Austria-Hungary, who believed
that rebellion was illegal; a violation of the natural law under which states
were created and governed by inherited authority deriving from history
and God. 75
On 31 December 1824 Canning instructed Sir Henry Wellesley, the British
Ambassador in Vienna, how to respond to Metternich:
216 The Law of Piracy
The doctrine of Prince Metternich, that the Greeks, as rebels [sic], are not entitled to the
same rights of war, as legitimate belligerents, is one, of which, we think His Highness
would do well to weigh all the consequences, before he promulgates it to the
world .... [W]e think it for the interest of humanity to compel all [sic] belligerents to
observe the usages by which the spirit of civilization has mitigated the practice of War. 76
The word "piracy" and its legal results at English law were injected into
the politics of the Greek rebellion by the Royal Navy. The Navy's problem
was how to protect British shipping and perhaps other neutral shipping,
including the shipping of the Ionian Islands, from the depredations described
by Sir Stephen Lushington; the abuse of the law of blockade by Greek
privateers. Indeed, there was a trend of British naval thought that objected in
principle to privateering. Lord Nelson himself in 1801 had written:
Respecting privateers, I own that I am decidedly of the opinion that with few exceptions
they are a disgrace to our country; and it would be truly honourable never to permit
them after this war. Such horrible robberies have been committed by them in all parts of
the world, that it is really a disgrace to the country which tolerates them. 77
It was apparently but a short step for British naval officers, encouraged by
the Bounty Act of 1825 78 to begin referring as "pirates" to those who
interfered with commerce protected by the Royal Navy. The "Agreements"
negotiated by the military arm of the East India Company with the Persian
Gulf Sheikhs indicate that the transition in language from a loose vernacular
reference to the Barbary states as "pirates" had already occurred by 1820 in
international documents of legal importance. That this development was not
accidental is indicated indirectly by the fact that the documents concluded in
the Persian Gulf were not in fact published in England outside the East India
Company until about the time Parliament enacted the Bounty Act in 1825,
when the "Contract" (but not the Preliminary Treaties or the 1806
Agreement with the Qawasim) was published in Parliamentary Papers. 79 It
thus appears that the bounty of twenty pounds per "pirate " killed or captured
and five pounds per escaping "pirate " on board a vessel attacked by the Navy
had begun to be paid with regard to actions in that area against vessels
classified as "piratical" by British municipal authorities only (the Treasurer
of the Navy on receipt of certification by a British Naval Commission). 80
The enthusiasm with which British naval forces chased down unlicensed
Greek privateers led local Greek authorities to demand "licenses" from the
Greek Provisional Government as a condition of their support. The situation
is succinctly summarized by Captain G.W. Hamilton of H. M.S. Cambrian in a
report to Vice Admiral Sir Barry Neale, Bart., the Commander-in Chief of
the British Naval Forces in the area on 4 March 1827:
[SJeveral pirate vessels have been destroyed . . . yet piracy evidently increases. The
Greek people are starving, and I have no doubt that the opposition of the Naval Islands to
the present [Greek Provisional] Goverment is principally occasioned by their refusing to
sanction cruising. 81
British 19th Century Practice 217
Indeed, in the absence of a license by the authorities impliedly "recognized"
by the British as legally empowered to grant it, local Greek authorities seem
to have granted their own licenses, whose legal effect was denied by the
British regardless of the public purpose and local official support given the
"pirates." At one point Commander Charles Leonard Irby of H. M.S. Pelican
wrote to the Ruling Council ("Ephori") of Sparta threatening direct political
action:
Ephori, — If you fail to deliver into my hands the persons of the two pirates Nicolo Suitto
and Nicolo Coccocci, I will intercept all vessels coming to you with provisions, and on
this account I have already detained an Imperial [Turkish] trabaccolo. 82
In this particular incident, one of the Ephori finally appeared to the British
Commander, denied that there were any "pirates" protected by the Spartan
authorities, and the matter was smoothed over without any delivery of
anybody. 83
Under pressure from the local Greek authorities, the Provisional
Government did in fact begin to issue licenses to Greek privateers, who
exercised the belligerent right of search and seizure of contraband on neutral
vessels against British, French and Austrian ships. The British regarded those
captures as illegal, but whether because the goods taken were not considered
properly "enemy" (Turkish) property, or neutral "contraband" or because
denying the belligerent right of search and seizure in the absence of blockade
is not clear. 84
One reason for the British frustration with the ways of the law, thus a
reason for using the term "pirate" to cover military action regardless of nice
legal definitions, was the difficulty of obtaining convictions on a criminal
charge of "piracy" before any court. In the one known case in which the
captain and crew of a Greek privateer were haled before a British court in
Malta, the result was an acquittal:
The evidence for the prosecution was weak very much owing to the absence of Capt.
Curtis [the British captor] — Capt. Lazzaro Mussu . . . maintained that the Themistocles
was a regular Greek man-of-war. 85
The British apparently felt the law an obstacle to action:
The more I see of these trials the more I see that a jury and our Piracy Court can do
nothing likely to put a stop to the activity of the Greeks in plundering every vessel they
meet with, calling all cargo Turkish property. — It was a fatal step allowing Greeks
anything like the right of searching vessels under neutral flags. 86
Things reached something of a crisis stage as far as the British were
concerned in October 1827. Under demands by Admiral Codrington, the
Greek Provisional Government reported that it "has taken the necessary
measures to stop the cruising, and does not issue any more papers for
cruising. " 87 Within two weeks Admiral Codrington in frustration at what he
regarded as the faithlessness of the Greek authorities wrote to "The President
and Members of the Legislative Body of the Greek Nation:"
218 The Law of Piracy
The conduct of the Provisional Government of Greece . . . has been so unjust and so
injurious to the commerce of the Allied Powers, and they have so entirely falsified, the
promises they made to me, that I shall decline writing to them henceforth. 88
Finally, the British authorities in London issued an Order-in-Council
instructing His Majesty's Naval Forces in the Mediterranean:
[T]o seize and send into some port belonging to (or under the protection of) His Majesty,
every armed vessel which they shall meet with at sea under the Greek flag . . . such
ships-of-war only excepted as are belonging to, or under the orders of, the persons
exercising the powers of Government in Greece. . . . 89
Whether this was intended to stop privateering and require the Greek
authorities to establish a formal naval arm, or merely to require some
regularity in the form of licensing and allow claims to be brought directly to
the Greek authorities for abuses of the licenses is not clear. In any case, the
absurdity of the British actually trying to police the seas with regard to Greek
activities against the Ottoman Empire, while at the same time diplomatically
supporting the efforts of the Greek authorities to achieve their independence
of Turkish rule, was clear. The ultimate answer was simply to attack as
"pirates" all the privateers whom the British sought to suppress, while
arguing that the Greek Provisional Government retained all the belligerent
rights that the facts justified as a matter of international law.
On 1 February 1828 Commodore Sir Thomas Staines reported to Admiral
Codrington that he had entered the harbor of Grabusa and, against no
military opposition at all, commenced firing; that the Greek garrison did not
return fire and eleven "piratical vessels" were destroyed or captured. 90 The
Greek authorities denied British rights to do what Staines had done and
demanded that "pirates" be tried according to Greek or international law,
implying that in their view the suppression of "piracy " was not a valid basis
for political action; that "piracy" was a legal term with legal consequences
that were being ignored by the British. Captain William B. Parker discussed
the Grabusa action with the Greek "President" (of the Legislative Body of
the Greek Nation — the body treated by Codrington as the Government of
Greece) pressing the British view that the British had jurisdiction to police
the seas against "pirates" and arguing that the Greek authorities were bound
by British views as expressing international law. In his report to Admiral
Codrington he indicated that he had spoken of the "necessity of delivering up
all the plundered goods . . . and four notorious pirates" to the British
authorities, "with a view to their [the pirates] being sent to Malta for trial."
The response of the Greek "President" to this demand, as reported by Parker,
sets out the legal position that any independent state would have assumed at
that time (or today):
His Excellency cannot consent to order the arrest of those individuals for trial at Malta,
on the principle that such conduct would be contrary to the laws and customs of civilized
nations, and render him the mere shadow of that authority, in which the Allied Powers
British 19th Century Practice 219
are disposed to support him, in order to establish a regular Government; but he most
readily gives orders for their arrest and to be conveyed here [the seat of the Greek
Government], and tried by the strictest tribunal he can appoint in Greece, leaving to the
English the selection of the [Greek] judges if they wish it. 91
The "plunder" was promised to be restored to its rightful owners by the
Greek authorities. 92 He thus appears to have conceded that unlicensed
depredations were a violation of Greek law and possibly of international law,
but that to treat them as violations of British law alone, as would be implied
by removing the accused "pirates" to Malta for trial, would be in effect to
deny that Greece was an independent country. His emotions and underlying
convictions seem identical to those of Attorney General Charles Lee in 1798,
refusing to accept a British request for extradition of accused "murderers"
under the terms of the Jay Treaty; not on the ground that the British lacked
jurisdiction in a case in which both parties had jurisdiction by traditional legal
rules, but on the ground that it was inconsistent with the "justice, honor and
dignity of the United States" to hand over to another for trial, persons who
are amenable to the jurisdiction of American courts. 93 But where Lee rested
his argument primarily on the competence of American courts under the
authority of the American Constitution and did not consider the overall
question of the power of the United States at international law to erect courts
with a competence to hear foreign cases, the President of the Greek
Legislative Body rested his argument on the more fundamental basis assumed
by Lee: That as officials of an independent country the competence of Greek
authorities to try Greek nationals for "piracy" or any other crime under
Greek or international law could not be questioned, even if Greece had to
erect special new tribunals to hear the cases.
As to the source of law to be applied by the Greek tribunal, the Greek
"President" took an approach that seems analogous to that taken by Justice
Story as a District Court judge in 1834, 94 asserting the propriety of the United
States taking jurisdiction over a foreigner committing "piracy" on the high
seas after the British authorities had voluntarily sent the culprit to the United
States for trial. Story's dicta, asserting no limit to American jurisdiction in
"piracy" cases occurring in the avenues of commerce where all states had
"territorial" jurisdiction, were necessary to maintain his own naturalist
definition of the widest extension of national jurisdiction to prescribe
criminal laws to protect commercial sea lanes against the depredations of
foreigners. Those dicta were unnecessary in a case in which American
jurisdiction to enforce the American prescriptions could be grounded on the
nationality of the victim and thus not require acceptance of Story's
conceptual framework of universality. Here the Greek authorities already
had jurisdiction to prescribe based on the nationality of the accused, and
jurisdiction to enforce based on their custody of the four "pirates. " Thus, the
dicta of Story were again unnecessary to maintain the Greek position, and the
220 The Law of Piracy
British authorities seem to have yielded not to convenience, as in the Pedro
Gilbert case, but to legal argument. And the legal argument was not the
extensive natural law argument of Story, but the simple assertion of
jurisdiction based on nationality as an attribute of statehood which, for
policy reasons on policy, positivist, grounds, the British were bound to
support.
From this point of view, the transactions in the Greek War of Independence
in the 1820s seem an assertion of British Imperial law defining "piracy" as a
basis for political action, rejected by Greece when legal results in the
international legal order were sought to be derived from the British label,
except so far as appropriate to maintain the framework of national action to
apprehend and try their own nationals accused of "robbery within the
jurisdiction of the Admiral" of any country's government, that is, outside the
land-based territorial jurisdiction of any other state. The ancient extension of
that jurisdiction to include prescriptions over foreigners whose victims were
nationals of the country exercising enforcement jurisdiction was maintained,
but as at best a concurrent jurisdiction, under which many states with a legal
basis for enforcement of their own prescriptions could among themselves
choose the most convenient; but no single state's jurisdiction could claim
priority over the jurisdiction of the state with actual custody and prescriptive
jurisdiction based on nationality of the accused or his victim or the victim's
vessel's flag. The British attempt to assert a general supervisory jurisdiction
over the seas succeeded only when diplomatic correspondence was avoided.
Diplomatic correspondence could most easily be avoided in dealings with
non-European societies and with unrecognized rebels. Let us turn now to
British dealings with those actors.
The East India Company, the Navy and the Courts in Southeast Asia
Politics and "Piracy" in Southeast Asia. The word "piracy " was first used by
the English 95 in connection with affairs in Southeast Asia in the loose
vernacular of 1608 to refer to possibly politically organized sea-borne
Malayan soldiers taking part with the Dutch in their unsuccessful attack on
Portuguese Malacca. 96 The word was used in 1717 by William Dampier to
refer to Malays who interfered with shipping in the Straits of Malacca in
1689. 97 In both these early usages there is no hint of legal connotations except
for Dampier's idea that the "piracies" were probably caused by the policies of
the Dutch interfering with the profitable flow of Malayan trade; thus, that
the "piracies," if illegal, were violations of Dutch assertions of doubtful
rights to intercept Malayan trade, or violations of an underlying international
law which the Dutch were also violating except to the degree that their
trading regulations were agreed to by treaty with Malayan governments
legally empowered to commit their merchant populations. The Dutch
considered all disregard of their treaty-based trade restrictions in the area as
"piracy," even if no depredations against any shipping were ordered, and
British 19th Century Practice 221
even if undertaken by the acknowledged Sultans of recognized Malayan
communities. 98
In 1808 the chief British official in Malacca seized a ship flying the flag of
Achin, a northern Sumatra Malayan sultanate with important political and
financial backing from Arab traders, claiming it to be Danish and lawful prize
during the Napoleonic Wars. The Achinese authorities in retaliation seized a
British ship and a Malayan ship from the British colony of Prince of Wales'
Island (Penang), ostensibly under Achinese law in Achin waters. Those
seizures were called "piracies" by the Penang officials." In 1813 the Sultan of
Achin condemned an Indian ship violating his blockade orders during a
revolution in Achin. This seizure was also denominated "piracy" by the
Penang officials. 100 The vessel was recaptured on the orders of those officials
and returned to its owners. The British East India Company government in
India, called "The Supreme Government" in contemporary British docu-
ments, agreed that the word "piracy" in some sense fitted the acts of the
recognized Achin Government:
[T]he right of the King of Acheen to regulate the Trade of the Country actually under
his authority cannot be disputed, but his pretensions . . . with respect to Countries which
are only nominally a part of his dominions cannot be admitted. . . . [T]he seizure by the
King of Acheen of Vessels trading to those countries on the pretence of it being a
violation of the laws of his Kingdom is little short of piracy. 101
The British authorities in Penang then authorized a local Arab merchant to
fit out five ships flying British colors and with some British subjects taking
part to fight against the Sultan's forces as if suppressing "piracy. " 102 An Arab
merchant fighting to have his son installed as Sultan in Achin then seized some
of the defending Sultan's vessels in which British merchants appear to have
had an interest, and in 1816 was himself actually jailed in Penang on a charge
of "piracy" until political pressures from the Muslim community in that
colony brought about his release without trial. 103
The same Penang British authorities in January 1816 wrote to the Sultan of
"Quedah" (Kedah), the Malay Sultan in the Peninsula opposite Penang, to
reassure him regarding a threat from the "King of Siack" (Siak) in Sumatra to
attack Perak, the Sultanate just South of Kedah in the Malay Peninsula:
I am very sorry to hear of the design entertained by the Siack chiefs against Perak; for
although not so intimately connected with that country as with Quedah, I feel interested
in all our neighbours, and I should desire by all means in my power to promote their
prosperity. . . . [T]hough not bound by treaty to protect Perak from invasion by sea, as
in the case with Quedah [sic], I shall treat as pirates any whom I find waging hostility so near
to this island as any part of the Perak territory. 104
At the same time, in writing to the Sultan of Siak, Governor Petrie of
Penang did not refer to "piracy" at all, but, in the paraphrase by the only
available source, wrote that he would consider "all abettors of such
proceedings as enemies of the British Government." 105 So far as is known,
222 The Law of Piracy
Siak called off its raid, and no British action was taken either to suppress
"piracy" or to fight on any other legal basis against Siak.
The need to find a legal label to justify British military activity was acute.
In 1784 Parliament had forbidden Subordinate Presidencies of the Governor-
General of India and Council (of which the British government in Penang was
one) to make war or even to negotiate a treaty without express permission
from higher authorities, ultimately those in London, except in the direst
emergencies. 106 Aside from vernacular usages, memories of Livy or Plutarch
from the schooldays of classically educated British colonial administrators,
and some possible analogies to the use of the label "pirate" to help suppress
the political activities of James II 's privateers, it was strongly in the interest of
British colonial officials to find somewhere a way around the restrictions of
the Act of 1784 if the ambitions of their aggressive merchant constituents in
distant outposts like Penang were not to embroil entire colonies in bloody
episodes. The Malay nobility had to be convinced that the British would not
confine themselves to defense, would in fact act before attacked, if a major
Malayan attack were to be deterred. It was very tempting to call Malayan
military adventures "piracy."
The word pops up in much of the official and unofficial correspondence of
the time. Sir T.S. Raffles in 1811 used it in contemplating the legal basis for
curbing the young Malay nobility. 107 In 1819 Governor Bannerman of Penang
tried unsuccessfully to annex Pangkor Island, nestled in the Perak coast,
partly as a base from which "piracy" could be fought. 108 In 1824 Colonel
Nahuijs, a Dutch official in Malacca, suggested to the Dutch Governor-
General in Batavia (now Djakarta, the capital of Indonesia) that various legal
problems surrounding the British acquisition of Singapore Island would have
been avoided if the British had classified the senior Malay chief there, the
Temenggongofjohore, as the leader merely of "sea-scum, "instead of as the
highest official of Johore under the Sultan. To Nahuijs, he was merely the
"head of the pirates:"
If the British Government, instead of entering into their contracts . . . with the son of the
king of Johore and the head of the pirates, had driven the latter from Singapore by armed
force and had established itself there, then its title of possession could have been based on
Right of War, and our Dutch Government, which had left the pirates so many years . . .
undisturbed . . ., would certainly not have all these strong and convincing arguments
which we can now bring forward. 109
In fact, the easy "legal" solution suggested after the fact by Nahuijs would
not likely have left the Dutch with no counterarguments, 110 and the
difficulties over the British occupation of Singapore Island had been resolved
by Treaty concluded in London between the British and Dutch on 17 March
1824. m That Treaty does refer to "piracy" and to some extent indicates the
looseness with which the word was coming to be used in Europe as well as in
the farther reaches of the British and Dutch Empires:
British 19th Century Practice 223
Their Britannick and Netherlands Majesties . . . engage to concur effectually in
repressing Piracy ["Zeerovery" in the Dutch version] in those Seas: They will not grant
either asylum or protection to Vessels engaged in Piracy ["Zeeroof], and They will in no
case permit the Ships or Merchandize captured by such Vessels to be introduced,
deposited, or sold, in any of their possessions. 112
There is no mention of extradition, cooperation in criminal procedures or
arrests. Indeed, the only steps actually envisaged seem to relate to "Vessels,"
as if unmanned ships alone interfered with trade. This might be a reflection of
the usage noted in Raffles 's correspondence that identified Malay nobles
sailing under licenses issued by the highest officials of the various Malayan
sultanates as "pirates;" Raffles, when writing in 1811, was the British
Lieutenant Governor of Java, the seat of the Dutch Empire occupied by the
British 1811-1816 to keep its resources from the French under Napoleon. The
complications that might occur if the British or Dutch took to trying as
criminals at British or Dutch law the licensed tax-collectors and "privateers"
of the Malay sultanates were too serious to warrant discussion; certainly
neither power would undertake an obligation to the other to incur these risks
of embroilment in Malayan law and politics by imposing European notions on
the organized political societies of the area.
Nonetheless, the use of the word "piracy" to justify European political
adventures at suppressing Malayan activities felt to be inconsistent with
British, or at least European, "hegemony," 113 led to entanglements that
brought local British officials into conflict with the Supreme Government as
the relationship between suppressing "pirates" and going to war in
contravention of the Act of 1784 was frequently unclear. It is impossible to
give more than a sampling of the many instances of which records survive in
which the word "piracy" was used to justify British political action in
Southeast Asia, but two incidents led to an examination of the relationship
between the political use of the word and the legal use of the same word, and
so are especially instructive.
On 17 October 1826 James Low, a British official under orders from the
Governor of Penang, negotiated an agreement with the Rajah of Perak under
which Perak would have ceded to the East India Company "the Pulo [Island]
Dinding and the Islands of Pangkor . . . because the said Islands afford safe
abodes to the pirates and robbers, who plunder and molest the traders on the
coast and the inhabitants on the mainland . . . and as the King of Perak has not
the power or means singly to drive out those pirates." 114 A week later, on 25
October 1826, the Rajah of Perak sent to Low a letter, obviously written by
Low and taken by the Governor of Penang, Robert Fullerton, to be a binding
commitment by Perak, providing:
His Majesty will speedily seize or expel the head officers now residing at Kurow . . . [and
other named places], who may have connected themselves with pirates or robbers, and
will give warning to the people there, that should they let pirates or robbers remain
224 The Law of Piracy
amongst them, and should any English come then from Penang in search of pirates, the
innocent might in that case suffer with the guilty. 115
In late January 1827, Fullerton sent Low to the Kurow on what he termed a
"pirate-hunting" expedition aimed at ousting from that area a Kedah official,
Nakhoda Udin, who was believed to have been involved in some depredation
in Penang waters. 116 The raid was repeated in April and May 1827. 117 In the
fuss that followed, the Governor General of India, Lord Amherst, took the
position that:
[AJccording to the laws of all civilized nations, [Udin's] conduct should have formed the
subject of representation and remonstrance to his own Government. If that Government
refused redress, the question of the proper course to be pursued would then have
naturally attracted the grave and deliberate consideration of your Board and of the
Supreme Government. 118
Low replied by referring to European difficulties in dealing with what he
regarded as an analogous situation involving the "pirates" of Algiers, and
argued that as the states of Europe had the legal right to suppress Algerine
corsairs, so in the Malay Peninsula, "the neighbouring state or states whose
subjects suffered from the cruel depredations of the pirates . . ., had a just right
to adopt any means for their destruction." 119
Fullerton and Robert Ibbetson, his chief subordinate, the "Resident
Counsellor of Penang," replied to Lord Combermere, the Vice President in
Council of the Supreme Government, on 27 August 1827, fully supporting
Low and arguing that British municipal law being inapplicable within the
domains of the Malay sultanates, and the Malays and Thai (who also claimed
sovereign rights in the area) being either unable to apply their law or
themselves involved in the actions of Udin, summary action against the
"pirate" was appropriate:
The regular course ... is to require the State protecting pirates to disperse them. If
unwilling, or as in the case of Perak, unable it is our duty to assist them and do it
ourselves. We are bound by the Treaty of 17 March 1824 to cooperate with the
Netherlands Government in the destruction of pirates, and the Straits of Malacca is the
portion of the sea we must be expected to protect. 120
To the suggestion that Udin himself, as a person injured by British activity,
might bring suit in a British court in Penang against Low or even Fullerton for
the actions taken beyond their authority as officials, Fullerton and Ibbetson
replied:
[F]or a noted pirate, one of the common enemies of mankind whom we are bound to
destroy to be allowed to appear in a Municipal Court against an Act committed in a
sovereign capacity beyond its [i.e., the Court's] jurisdiction is a novel idea certainly. 121
The Supreme Government apparently mistrusted the rash Fullerton, while
at the same time accepting his view of the law and politics. The cession of
Pulo Dinding and the Islands of Pangkor was refused and Fullerton 's military
support was cut to the point that further adventures of this sort would be
British 19th Century Practice 225
impossible. 122 But at the same time, the propriety of Low's raids was
approved. The evidence of Udin's lawlessness was found convincing, wrote
the Governor General of India in Council to Fullerton on 16 November 1827,
and it is much to be regretted that this was neither forwarded for the information of the
Supreme Government, nor even alluded to in the correspondence upon which the view
taken in the Governor General's letter of 23d July . . . was founded. But for the still
unsettled question of. . Jurisdiction [over Kurow], the example which was made of that
nest of pirates would have been entirely satisfactory.
If the Thai official in the area can prove his claim to the Kurow, the British
would be "answerable to him for the error, "Lord Amherst continued. But if
he should press that claim, "You will at the same time impress on [him] the
right which all nations possess to seize and punish pirates wherever they may
be found." 123
It seems plain that both the local authorities and the officers of the Supreme
Government in India believed that the forms of British law were not capable
of dealing with "piracy" in the area. The label was attached to land-based
groups with political connections; the counter-action was taken on land that,
whatever its legal subordination might be, it was certainly not within the
territorial jurisdiction of any British court. Nor were the acts in question
done within the jurisdiction of British Admiralty courts, 124 the attack on Udin
having occurred on land. Had Udin been arrested in Penang or Province
Wellesley, presumably he could have been tried in Calcutta for "piracy, " but
British authority to arrest him was not considered to exist outside the
territorial jurisdiction of a British court. The problem was treated as one of
policy only, and no mention was made in any of the known correspondence of
Molloy's or Jenkins's rationales for arrest and summary judgment by ships'
masters either under the natural law of property and self defense, or under
presumed license from their flag states. 125
The word "pirate" was used repeatedly in further correspondence by the
British authorities in Penang with regard to a dynastic struggle in Kedah, and
applied to the Malay forces seeking to restore a deposed Sultan to his claimed
authority there in defiance of the new Sultan placed there by the Thai
exercising what they believed to be their own legal right to determine
succession in Kedah. 126 When Robert Ibbetson succeeded Robert Fullerton as
the chief British official in the area he adopted Fullerton 's vocabulary. But
when he attempted to use the term "piracy" to bring British naval forces
more actively into the struggle to suppress the forces of the deposed Sultan as
"pirates," he was brought up short by Rear Admiral Sir Edward W.C.R.
Owen, the British Commander-in-Chief of Naval Forces, East Indian
Station, who advised him that, in the words of Governor Ibbetson, "I could
not treat as pirates any against whom no acts of piracy had been specifically
alleged, or proof obtained. " 127 "Piracy" was in that instance viewed by the
Senior Naval Officer in the area as a concept of British municipal law, not an
226 The Law of Piracy
excuse for politicl action. When Samuel G. Bonham, then Resident
Counsellor at Singapore subordinate to Governor Ibbetson, suggested a
"pirate-hunting" expedition to the East coast of the Malay Peninsula to
counter a Thai move in Trengganu, Ibbetson replied with a careful analysis of
the Treaty of 1826, did not mention "pirate-hunting" or "piracy" in any way,
and refused Bonham's proposal. 128
In 1838 Bonham was Governor of the "Straits Settlements" of Penang,
Singapore and Malacca, and tried again. Without using the word "pirate," he
asserted British authority over the rebel leaders, Tuanku Mohamed Saad and
Tuanku Mohamed Taib, nephews of the deposed Sultan of Kedah, Taju'd-din,
by virtue of their holding land in the British colony (which Bonham believed
made them subjects of the British Government) and asserting that their object
in Kedah was not political but mere plunder. 129 The Thai had now taken to
calling the rebels "pirates . . . enemies to the Siamese as well as the English
countries" and requested the British to drive them from the seas. 130 The
Supreme Government did not accept this Thai classification, 131 but instructed
Bonham to take various actions consistent with British commitments to
Thailand under the Treaty of 1826.
The result of this instruction was a blockade which Bonham apparently
regarded as resting partly on the Treaty of 1826, which was then interpreted
to require the British to prevent the Malay claimants to the throne from
disturbing Kedah in any way. It rested also partly on Bonham's conviction
that it was a British obligation at general international law to suppress
"piracy," and that the Malay claimants were out for personal gain, thus
"pirates" in the contemplation of international law. The Thai agreed with
both these assertions. The British naval officers present had serious doubts
about the second. 132
Mohamed Saad; "Pirate" or Patriot? The matter was resolved, in a fashion,
by the success of the "pirates" under Mohamed Saad on 2 August 1838,
followed on 7 March 1839 by the complete victory of the Thai. On 6 April
1839 Mohamed Saad and two other ousted Kedah nobles fled to British
territory to escape the Thai. On 2 July 1840 Mohamed Saad was captured in
Province Wellesley, a strip of British territory along the coast of Kedah
opposite Penang, and on 26 October 1840 he was tried at Penang on a charge
of "piracy." 133 The result was an acquittal for Mohamed Saad and his
companions. 134
The specific charge was the forcible capture of a boat on "the high seas" on
8 July 1840, 135 thus after the Thai had reconquered Kedah and Mohamed Saad
and his people had lost their base there. It is unclear where their base actually
was and what the nationality of the owner or persons on board the boat; the
possibility was not considered that there might have been normal British
jurisdiction resting on preparatory acts or conspiracy by Mohamed Saad and
his companions in Province Wellesley or other British-governed territory, or
British 19th Century Practice 227
on the nationality of the victims. 136 Instead, the case was treated as one of
"piracy" jure gentium and the defense first went to the jurisdiction of the
British courts to sit in judgment on the public acts of a "rebel" against his
sovereign (Thailand). The arguments of counsel are learned and eloquent in
the thunderous style of the period. Citations to R. v. Kidd, Palachie's Case 137
and a charge by Leoline Jenkins 138 appear among other citations. 139 On 2
November 1840 the Recorder, Sir William Norris, overruled the first plea to
the jurisdiction by the defendants on the basis that defenses going to the
substance of the charge cannot be a basis for defeating the court's jurisdiction.
Norris cited R. v. Kidd for the proposition that even if Mohamed Saad had a
commission from the rightful Sultan of Kedah, he might have exceeded it and
thus become a "pirate." In general, Norris took a "naturalist" position,
asserting British jurisdiction to exist over foreigners for their depredations on
the high seas against yet other foreigners. 140
The case was then tried before a jury with the defense alleging that as
subjects of the "King of Quedah" they "are not British subjects, neither are
they are [sic] of the description of other persons who, by the Laws of England
respecting the offences of Piracy, are made amenable to the said Laws" by
virtue of their official connection with the Ruler of Kedah. 141 Moreover, by
virtue of that connection they claimed the right:
to pursue any hostile measures of retaliation against Subjects of Great Britain and Siam,
that were consistent with the received Laws of Nations by States at war with each other.
By which acts of retaliation, such as are charged . . . , the said defendants . . . might
have rendered themselves liable to the Laws of War, but not to the Criminal Laws of
England. 142
Norris charged the jury that the law of nations applied to the case,
apparently meaning "international law" or the law between states rather
than the private law identical in all states, and not the law of England. He held
that uncontradicted evidence made it clear that the defendants acted for
public purposes on behalf of the Sultan of Kedah at all important times. He
argued as a matter of law that dynastic struggles such as that of James II after
1688 143 and in Scotland for forty years after the Act of Union of 1707 144 could
not be deemed by international law to involve acts of "piracy " whatever the
labels used by one or other of the parties to the struggle. 145
The prisoners were released except for Mohamed Saad himself, who was
held as a political prisoner in "honourable captivity" at the will of the
Crown. 146
The impact of the case on the British political use of the term "piracy" in
the Malay area was great. Governor Bonham immediately consulted Norris
formally about the law on 23 December 1840, asking a series of written
questions concerning the implications of the decision for other British
measures to suppress Malay activities less closely tied to Peninsular politics
and relations with Thailand. He looked beyond the particular case to the
228 The Law of Piracy
wider implications of Norris's view of the law. First, Bonham asked if the
British executive authorities in Penang had been asked by the court for a
statement of British political relations with Kedah. Second, he asked if the
other Kedah nobles of the family of the Sultan who had been ousted by the
Thai before Mohamed Saad began his activities to regain the throne had any
immunities from ordinary suit in the British court in Penang, where they
resided. 147
Norris replied a month later. To the first of these two questions he
answered, No. In an earlier case dealing with Ilanun (Malay) defendants
accused of robbery within the Admiralty jurisdiction, inadequacies of their
defense made it impossible for them to frame their relations with their
political superiors in legally comprehensible ways, "so in humanitarian
interests the court undertook to find the facts without adversary
proceedings." That accounted for a query to the executive officials; it was
not a sign that the law either required such a query or that the courts would be
bound to apply as if true the labeling system urged by executive officials as a
result of their own evaluation of the facts and political interests. In the
Mohamed Saad case, Norris continued, Saad was quite well represented and
no doubt of the facts existed,
his possession and actual government of Keddah for many months, his expulsion from
thence by the British and Siamese authorities, and the continuation of hostilities
between him and them up to March last, if not to the very moment of capture. . . .
Neither for its own satisfaction, therefore, nor injustice to the accused did the Court
feel itself called upon to seek further information from the executive authorities . . . and
scarcely would it have been justified in volunteering to call upon the Government,
especially in a government prosecution, as this essentially was, for evidence to rebut or
explain away a defence, the substantial truth of which there was no apparent reason to
doubt. 148
As to the other question, Norris refused to reply on the ground that it would
be the particular facts of the case that would determine the legal results, and it
would be improper for a judge to anticipate the outcome of a case that had not
yet been brought. 149
The Court of Directors of the East India Company in London accepted
Norris's analysis on both points: The power of an English court at English law
to determine the facts and the legal categories best fitting those facts for the
purpose of a case before the court regardless of perceptions of fact and
categories deemed controlling by the executive authorities, and the
impropriety of speculation as to the outcome of future cases. They issued
policy guidance to the Government of India at Fort William:
If any relative or dependant of the Ex Rajah [of Kedah] should hereafter engage in
similar courses, he will of course on the principles laid down by the Recorder, be treated
as a public enemy, and when taken, as a prisoner of war; unless the case should be such as
under the following passage of the Recorder's address would afford a prospect of
conviction for piracy. 150
British 19th Century Practice 229
The passage of Norris's charge to the jury that was thus adopted as policy
guidance on the point of law, defining when a Malay noble might be
considered a "pirate," was quoted:
He [Norris] by no means intended to say that every Malay inhabitant of India 151 who
could contrive to fit out a prow [native vessel; usually spelled prahu in modern writings]
was at liberty to cruize about and capture any property belonging to subjects of Siam
and of this Government which might fall his way without fear of incurring the guilt and
punishment of piracy. In every such case a piratical intention must necessarily be
presumed until the contrary was shown by the clearest evidence of a combined national
object, and an authority or commission from some person or persons who had an
indisputable right to grant it. 152
The legal designation "pirate" was thus held to be inappropriate for those
pursuing public ends who have some show of organization sufficient to
warrant a court in holding that a license had been granted by a person or
persons with a "right" to grant it. Furthermore, the determination of the
legal system under which that "right" existed was to be a matter of law
determined by a British judge, not by the executive authorities; that "right"
apparently did not derive from British or English law, under which nobody
had authority to issue such licenses except the officials of the Crown. Thus a
natural law approach was taken in which judges themselves determined the
fitness of labels based not on policy considerations and legal results sought for
policy reasons, but on the conception that the law existed outside of national
interest and could be determined and applied by British judges in the normal
way, on the basis of argument by learned counsel. To fit this approach into a
legal pattern more familiar to lawyers today, it appears to have envisaged a
rule of conflict of laws applicable in English colonial courts that referred
cases of alleged "piracy" to true international law, not British Imperial law
(whose spokesmen were officials of the Crown). By "international law" as
perceived by Norris, the label "pirate" was not appropriate for a political
actor, even a Malay fighting in an area of British hegemony; it was
appropriate only for sea-robbers, those called "pirates" by British municipal
law. This approach was clearly a check on those British officials who fancied
applying the ancient Roman conception of hegemony to the fringes of the
Empire; what they wanted to gain as a matter of law, they would have to fight
for militarily, thus justify their actions not as law-enforcement, but as
political action within the terms of their delegated authority and the
restraints put on it by the Parliament in London.
Another implication was the continued restriction of the applicability of
the British law regarding "piracy" to those cases in which there was some
legal basis for applying British prescriptions to the acts of the foreigners
outside of British territory. Norris had referred to the capture of property
"belonging to subjects of Siam or of this Government" in the passage adopted
in London as the basis for future policy. The extension of criminal jurisdiction
to cover the acts of foreigners against a state's own nationals on the high seas,
230 The Law of Piracy
the use of the nationality of the victim as a basis for "standing" to apply a
state's municipal law to the foreigner acting abroad in territory in which no
other state had a greater basis for claiming jurisdiction, has already been
discussed. 153 The extension of this basis for jurisdiction to protect Thai
nationals is not explained, but in context probably rests on a reading of British
obligations under the Treaty of 1826 requiring the English to "aid and
protect" Thai merchants and their ships coming to trade in territory
governed by the East India Company. 154
If this narrow reading of Norris's position is correct, it leaves a gaping hole
with regard to depredations not only against Malays, but also against Dutch
and other European merchants coming to trade in the Straits Settlements. It is
not surprising that British colonial officials began looking for other ways to
spread the net of British Imperial law over the area and make the sea lanes safe
for peaceful trade. The way was to shift the focus out of the courts, and assert
a right at British Imperial law to hunt down "pirates" as a matter of enforcing
not the municipal law administered by Admiralty courts, 155 but of enforcing
international law, or the British version of international law, directly against
groups or persons whom that law was interpreted to leave unprotected, and
which could be destroyed under the law of war or even under an anarchical
conception that those unprotected by the law were mere "outlaws" and
action against them required no special license under international law.
Lushington Unleashes the Navy f s Naturalists. The tale has already been told
with scholarly reliance on primary documents regarding the British activities
to suppress "piracy" in waters along the coast of China 156 and in the waters
adjacent to the Malay Peninsula. 157 It is, of course, unnecessary to repeat that
story here. But the implications on the evolution of legal conceptions have
never been fully analyzed 158 and it might be instructive to examine here the
further impact of the Mohamed Saad case on British conceptions of "piracy"
as a political act justifying political counteractions under the British
administrators' interpretations of international law regardless of the criminal
law administered by British Admiralty tribunals following the precedents
begun in 1536.
It is an irony of legal history that the Mohamed Saad case and the formal
shift in British policy that it caused in Southeast Asia was barely reported in
England, and that two Admiralty decisions in England that had very little
impact on British policy were so widely reported as to take the form of
leading cases although misinterpreted by later generations. In 1843 Henry
Keppel, a son of the Earl of Albemarle, was Captain of H.M.S. Dido in
Malayan waters. Considering some Dyak villages in Borneo to be "piratical, "
he attacked them in waters that could by no definition be considered "high
seas" except that they were navigable, and wiped them out. The political
effect of the raid in Borneo was to help James Brooke, an English adventurer,
in his attempts to get control personally of the government of Sarawak. 159
British 19th Century Practice 231
Legally, the question was raised as to whether the label "pirate" could be
attached to organized political groups operating on land as well as at sea to
interfere with the British version of freedom of navigation on the high seas
when Keppel sought the bounty provided for engagement with "pirates"
under the Bounty Act of 1825. 160 The decision of the Court of Admiralty was
written by Dr. Lushington and delivered in 1845 under the name Serhassan
(Pirates). 161 It awarded the five Pound Bounty with regard to 125 "pirates on
board the vessels at the commencement of the conflict," and the twenty
Pound bounty with regard to 45 "pirates . . . captured or destroyed." 162
The only act of "piracy " alleged against the Dyaks was their attack on the
British force led by Captain Keppel and his men. The Queen's Advocate
seeking to limit the payment of bounty under the Act of 1825 apparently did
not argue that such an attack if intentional would be an act of war, not
"piracy," but only that the attack was in context "unintentional," at least
that is as far as Dr. Lushington was willing to discuss the matter:
It matters not that they may possibly have entertained no inclination to bring themselves
in conflict with the British power; it is sufficient, in my view of the question, to clothe
their conduct with a piratical character if they were armed and prepared to commence a
piratical attack upon any other persons. 163
There is no analysis of the reach of British criminal law jurisdiction; no
apparent limit to the legal right of a British force to sail where it would and to
protect any person, of whatever nationality, who might be the victim of a
"piratical" attack. The phrase "piratical character" seems to be used with no
analysis at all, implying that the Dyaks had no shadow of a legal right under
the law as understood by Dr. Lushington to resist any British inroads on their
territory or exert a jurisdiction of their own to control commerce, tax it, or
forbid it in waters they might claim as part of their own territory. Moreover,
there is no attempt using the usual tools of statutory construction to find this
meaning of the word "pirate" in the intention of the Parliament when the Act
of 1825 was passed other than a recital of the preamble. That preamble is
singularly unhelpful in this context, itself using the phrase "Pirates or Persons
engaged in Acts of Piracy" without narrower definition:
Whereas it is expedient to give Encouragement to the Commanders, Officers and
Crews of His Majesty's Ships of War and hired armed Ships to attack and destroy any
Ships, Vessels or Boats, manned by Pirates or Persons engaged in Acts of Piracy . . . 164
It appears that British naval forces would do much better attacking and
destroying anybody who interfered with seaborne commerce than trying to
arrest and bring such persons in for trial before a British court competent to
hear a "piracy" case. The result in practice was the proliferation of claims to
the point that the Bounty Act had to be repealed. That proliferation is
traceable directly to the Serhassan (Pirates) decision. 165
The Bounty Act of 1825 was in fact repealed on 25 June 1850 166 and replaced
with a provision for the Lords Commissioners of the Admiralty to request the
232 The Law of Piracy
Directors of the East India Company (by then incorporated into the formal
Government of England for all practical purposes) 167 for money to pay a
reward fixed at the discretion of the Commissioners under the same
procedures as applied in the case of British actions to suppress the slave
trade. 168 The Act of 1850 preserved bounty claims that arose out of British
naval activity before the Act of 1850 took effect in British municipal law. 169
Its operative section resolved the question of whether shore-based persons
could be "pirates" by adopting Dr. Lushington 's conclusion in The Serhassan
(Pirates) case that shore-based persons could commit "piratical" acts when
they engaged British naval or amphibious forces, and it appears to have been
assumed that all acts involving those forces were within the ancient assertions
of English Admiralty jurisdiction or on the "high seas" even if occurring
ashore:
That, whenever any of Her Majesty's Ships or Vessels of War, or hired armed Vessels,
or any of the Ships or Vessels of War of the East India Company, or their Boats, or any of
the Officers and Crews thereof, shall . . . attack or be engaged with any Persons alleged
to be Pirates afloat or ashore, it shall be lawful for the High Court of Admiralty of
England, and for all Courts of Vice Admiralty in any Dominions of Her Majesty beyond
the Seas ... to determine whether the Persons or any of them so attacked or engaged
were Pirates . . . 170
Dr. Lushington was the person who had to construe the new legislation. On
1 December 1851 a British ship, the Eliza Cornish, damaged by weather,
anchored in the Straits of Magellan for refitting. A nearby convict settlement
maintained by the Chilean Government overthrew the Chilean guards and
seized the vessel and its cargo as part of what was regarded by Dr. Lushington
as an insurgent operation challenging the authority of the Government of
Chile. The vessel was recaptured by a British warship at sea, and with a small
British contingent and master, but with her mixed original crew, the Eliza
Cornish set out for England. She foundered again and was sold in Portugal,
eventually returning to England under Portuguese colors and renamed the
Segredo. In an Admiralty action in which the original English owners sought to
have the Portuguese sale annulled 171 Dr. Lushington held that it was irrelevant
whether the taking in Chile had been by insurgents or "pirates" 172 but that the
English law authorizing the master to sell the vessel was the only statute to be
construed. Lushington held for the English original owners on the ground that
the English municipal law rule, although statutory, restricting the ship's
master's legal power to sell his vessel to cases of "necessity" as conceived by
Parliament, was somehow a better reflection of the universal natural law of
nations than the Portuguese rule, which allowed a wider discretion in the
master and safeguarded the interests of the good faith purchaser in Portugal.
Lushington seems not to have considered persuasive any conflict of laws
approaches. The phrase is not used by him. As a judge, he seems to have
abandoned entirely the positivist approach he had taken as legal adviser to the
British 19th Century Practice 233
political officers of the Crown in 1823, and become a champion of judicial
discretion affixing legal categories as interpreting universal law regardless of
jurisdictional restraints on British Admiralty tribunals, if any. It is as if he and
Joseph Story in the United States had exchanged heads in 1834. Ironically, the
cases that involved this resurgence of naturalism were based not on incidents
to be resolved by the rule of reason, but on a naturalist construction of British
municipal legislation. Holding that legislation to express universals that as a
matter of law could not be contradicted by the legislation or judicial decisions
of foreign Admiralty or other tribunals, Lushington had found a legal path
through which British legislation could rule the world, at least as long as
British courts could assert jurisdiction to hear the cases. The legal and
political implications of this were enormous.
Immediately after Lushington 's decision in the Segredo case, an application
for bounty was made by the British captors under the Act of 1850 and opposed
by the Crown and the English owners, arguing that if the Chilean captors
were insurgents, Chile, not the British Treasury and the owners in a salvage
claim, would be legally responsible for the costs to the owners occasioned by
the temporary loss of the vessel. Dr. Lushington could not avoid a legal
distinction created by English municipal law that seemed to rest on
classifications created by international law. 173
He began by arguing that both the Act of 1850 and its predecessor
Bounty Act of 1825 had in mind the same conception when they used the
word "pirate." That conception, he held, rested on the usage of the word
in English criminal law: "I apprehend that, in the administration of our
criminal law, generally speaking, all persons are held to be pirates who are
found guilty of piratical acts; and piratical acts are robbery and murder
upon the high seas." 174 He then went on to the first of several grave
confusions:
I do not believe that, even where human life was at stake, our courts of common law
ever thought it necessary to extend their inquiries further, if it was clearly proved
against the accused that they had committed robbery and murder upon the high seas. In
that case they were adjudged to be pirates, and suffered accordingly. 175
In fact, as we have seen, English Common Law courts were never involved in
"piracy" cases, and questions of license were the essence of several cases
before Commissions constituted under the statute of 1536. Those cases were
never overruled but confirmed by implication of the statute of 1700, laying a
new rule down in conformity with the Commissions' and Admiralty Board's
approach that an Englishman could be a "pirate" who acted against other
Englishmen under color of a foreign commission. 176
Turning to the question of whether to be "piratical" the acts had to be
aimed indiscriminately at all potential victims, Dr. Lushington specifically
held not, finding the leading American Case, United States v. Smith 177 on this
point irrelevant:
234 The Law of Piracy
Whatever may have been the definition in some of the books, and I have been referred
by Her Majesty's Advocate to an American case, where, I believe, all the authorities
bearing on this subject are collected, it was never, so far as I am able to find, deemed
necessary to inquire whether parties so convicted of these crimes had intended to rob on
the high seas, or to murder on the high seas indiscriminately. 178
This view, directly at odds with the American position adopted in U.S. v.
Klintock, 179 when the "standing" point was squarely raised and argued, seems
insupportable in logic, and Dr. Lushington's logic seems elusive. He did not
discuss the reach of domestic jurisdiction to make rules and definitions, or
national jurisdiction to apply even internationally agreed rules to the acts of
persons not within the allegiance of the sovereign of the applying court when
the victims of those acts are not legally protected by that sovereign under any
acknowledged principle of law. Nor did he consider whether there were
lacunae in the coverage of law that could be filled by extending national
jurisdiction as the Americans had done up to the point at which some foreign
municipal law begins to apply or some foreign interest protected by
international law shifts the burden of enforcing that law to the shoulders of
those most directly affected, thus most able to compromise and negotiate a
solution to any particular tension. Instead, Dr. Lushington seems to have
assumed that British courts applying British municipal conceptions of
"piracy" as a crime under English law (indeed, under English Common Law,
where there was no such crime) 180 faced no significant problems deriving
from the distribution of authority to states under the international legal
order. He stated that:
Though the municipal law of different countries may and does differ, in many respects,
as to its definition of piracy, yet I apprehend that all nations agree in this: that acts, such
as those which I have mentioned, when committed on the high seas, are piratical acts,
and contrary to the law of nations. 181
Since the phrase "the law of nations" not only commonly meant the identical
municipal "natural" law of all countries to writers of the time, and Dr.
Lushington is explicit that what he was looking at was the least common
denominator of such municipal laws as they might define "piratical acts, " his
failure to consider questions of jurisdiction, his assumption that a British
court could apply to foreigners its version of the "law of nations" applicable
to "piracy" without any consideration of the British connection to the
offense, seems unaccountable. Perhaps, in this case, the nationality of the
Eliza Cornish so dominated his thinking that he did not consider the point
worth mentioning.
But the major issue to Dr. Lushington was not the reach of British
jurisdiction or even the definition of the "crime" at English municipal law. It
was the reach of English law to the acts of those who claimed a license from a
foreign belligerent: insurgents. As to that, he began by arguing that even if
international law gives to belligerents a license to attack opposing forces of
British 19th Century Practice 235
their own country, that license does not extend to attacks on other countries'
shipping. But instead of regarding the attack on third country (British)
shipping as a breach of belligerent obligations toward neutrals in a war, he
argues that it can properly be considered "piracy," "especially if such acts
were in no degree connected with the insurrection or rebellion." 182 There
follows the most extreme, and most often cited, passage in the case:
Even an independent state may, in my opinion, be guilty of piratical acts. What were the
Barbary pirates of olden times? What many of the African tribes at this moment? It is, I
believe, notorious, that tribes now inhabiting the African coast of the Mediterranean
will send out their boats and capture any ships becalmed upon their coasts. Are they not
pirates, because, perhaps, their whole livelihood may not depend on piratical acts? I am
well aware that it has been said that a state cannot be piratical; but I am not disposed to
assent to such a dictum as a universal proposition. 183
He concluded that the Parliament in enacting the Acts of 1825 and 1850 had in
mind the depredations on the high seas committed by "the subjects of a
barbarous state, or by insurgents" as well as be mere unlicensed individuals or
groups. 184
Turning to the circumstances of the capture of the Eliza Cornish, Dr.
Lushington pointed out that the Act of 1850 refers to engagements against
pirates "afloat or ashore" 185 and concluded that the forcible capture of the
vessel in port, even though there was no immediate bloodshed and a color of
right claimed by the insurgents, was "piratical" within the sense of the Act.
He did not distinguish between those who might have had political motives
and those acting animofurandi, asserting "that all who embarked on board the
Eliza Cornish . . . were conspirators in the original murders and robberies." 186
The question of political motive seems not to have been considered. Dr.
Lushington concluded that:
It was for services like these [the engaging of the "pirates" and recapture of the vessel]
that the Legislature intended to provide a reward; services of great importance to the
safe navigation of the seas in that part of the world, and effected by the capture of a band
of persons whose acts of murder and plunder, both on land and at sea, rendered their
capture and punishment indispensable to the safety of ships of all nations occupied on
those waters. 187
It is clear throughout the opinion by Dr. Lushington that his concern is not
with establishing any definition of "piracy" at international law, or even
"piracy" at English municipal law for the purpose of a criminal trial; there
was no criminal trial involved. Nor did his concern involve "piracy" as an
element of a property adjudication; the Magellan Pirates case was a simple
bounty claim under a British statute, and, although coupled with an
implication for salvage charges, was not an in rem action and did not determine
questions of property directly. 188 His concern was to construe an Act of
Parliament providing rewards for naval action far from England. The
reference to the English municipal crime of "piracy," and his dismissal of
236 The Law of Piracy
American precedents with regard to aspects of that definition and its reach to
acts of foreigners abroad, are consistent with his search for an understanding
of what the non-lawyers in Parliament seemed to intend when they referred
to "piratical acts" in the bounty legislation. The result was to transfer the
pejorative definition of "piracy," the usage that had been hanging in the
background since at least the time of James I, 189 into British Admiralty law
and policy.
As noted above, no British criminal jurisdiction was involved; the
"pirates" had in fact been turned over to the officials of the Government of
Chile recognized by the British authorities, 190 and their jurisdiction to apply
Chilean law to Chilean nationals acting in Chilean territory, despite the
claims of belligerent rights, was undoubtable. 191
The major implication of the case was to establish British Imperial law as
the basis for British political action worldwide. Upholding the jurisdiction of
the British Parliament to prescribe with regard to the acts of British naval
forces on foreign shores, which can hardly be doubted, and silent as to the
reach of British municipal criminal law to measure the acts of foreigners
there, the case gave every encouragement to British military planners to
believe their political action against foreigners who interrupted the course of
British (and possibly third country) commerce was legally justifiable. Since
no extension of British municipal law was involved beyond the reach of the
Admiralty courts established in peacetime, the essence of the departure from
precedent taken by the decision of Dr. Lushington in the Magellan Pirates case
was its application of a British political definition of "piratical acts" tojustify
political action against groups claiming legal privileges under international
law. Indeed, the very form of the investigation pursued by Dr. Lushington, his
search for a meaning for the adjective "piratical" rather than a meaning for
the noun "pirate," indicates the narrow scope of his logic. Apparently, to Dr.
Lushington "piratical acts" were those acts which "pirates" at English
criminal law committed; no question of jurisdiction to enforce English law
was involved and the Chilean insurgents might even not have been "pirates"
at all. The bounty statute was construed to provide bounties for those
engaging persons committing "piratical acts" whether or not "pirates"
technically, and whether or not amenable to British courts' jurisdiction. From
this point of view, Dr. Lushington's logic becomes entirely clear, but the
precedent value of the case becomes petty; it turns out to have nothing to do
with definitions of "piracy," but rather is a construction of a municipal
statute giving a municipal reward to designated agencies of government
deployed to suppress an activity in the public sphere which the Parliament felt
should be suppressed. It is the assertion through an Act of Parliament of
government policy to sweep the seas of all persons, whether licensed or not,
who impede commerce by killing or robbing those whose business was trade,
or, to bring up Lushington's views expressed in the Serhassan (Pirates) case,
British 19th Century Practice 237
who obstructed British naval activities whatever they were. It was, on a
deeper level thus, an attempt to apply British municipal interpretations of
international law regarding freedom of navigation (including port calls) by
encouraging British assertions of naval power. Whether those assertions
were consistent with international law as it derives from diplomatic
correspondence and the structure of the legal order, was not considered by
Dr. Lushington except in a passing reference patently false and in a context
not directly applicable — a reference to the vernacular meaning of the
adjective "piratical" as it might have been applied to the Barbary states and
others, and not to any legal context at all.
It was this passing reference to the "piratical" activities of "the Barbary
pirates of olden times," and the inclusion of political societies of the same
North African region under the label "pirates," that was the great change. As
has been seen, the Barbary "states" had in fact never been considered legally
as anything but states in the international legal order in "olden times" despite
the losing arguments to the contrary by Gentili, 192 the representatives of
Venice, 193 and the original British owner of the Helena before Lord Stowell in
1801. 194 The vernacular use of the word "pirate" by the East India Company
people in the Persian Gulf in the 1820s, as has been seen, 195 was not a reflection
of any view of English law, but a local usage by East India Company officials
in treaties that seem to have been significant in Parliamentary deliberations
about extending the Napoleonic Wars' bounty provisions to the suppression
of Arab sheikhdoms there, but aside from that there does not seem to have
been any basis but English vernacular usage for Dr. Lushington 's conclusion.
The basis for English vernacular usage in Roman precedents regarding the
organized societies of the Eastern Mediterranean opposing the extension of
Roman "hegemony " has already been noted. 196 It is thus not surprising to find
the usage applied in England to analogous societies opposing the extension of
British hegemony to areas in which there was British territorial expansion as
in the Persian Gulf and Malaya. But it is highly significant to see the scope of
the "hegemony" expanded to cover all seas, and land-based opposition not
only in Malayan waters but even in Latin America. Since Dr. Lushington 's
views applied to British naval activity worldwide, and were made in
disregard of the questions of international law regarding belligerency that
limited the British position with regard to the Greek independence
movement in the 1820s, 197 and in disregard of the same factors that led to the
acquittal of Mohamed Saad in Penang in 1840, 198 it is possible to conclude that
by 1853, when the decision in the Magellan Pirates case was rendered, the
British had differentiated the criminal charge of "piracy" at English law
from the use of the term "piracy" to justify military action, and that the use of
the term in the latter sense was not a reflection of any international consensus,
but a purely British interpretation of the law, making it appropriate to call it a
word of art in British Imperial law only.
238 The Law of Piracy
British Imperial Legal Policy and Real Public International Law
The British Change of Definition. The decision by Sir Stephen Lushington in
the Magellan Pirates case prompted reconsideration within the British
Government concerning the definition of "piracy" and British action under
the Bounty Act of 1850. The Magellan Pirates decision had come down on 26
July 1853. On 15 February 1854 a legal "Report" was rendered by J.D.
Harding for the Law Officers of the Crown to George W.F. Villiers, the 4th
Earl of Clarendon, Foreign Secretary in the Aberdeen and Palmerston
Cabinets of 1853-1858. 199 Although the subject is ships, "Piratical Vessels
under British or other Flags," the report begins by referring to persons and
defining "pirates:"
1st, That all persons (whatsoever their origin, or under whatsoever Flag or Papers they
may Sail, or to whomsoever their ship may legally belong) will be pirates by the Law of
Nations who are guilty of forcible robberies, or captures of Ships or Goods upon the
High Seas without any lawful Commission or authority. They and their Vessels and
Cargoes may be captured by Officers and Men in the public Service of any Nation, and
may be tried in the Courts of any Nations. For the purpose of Jurisdiction in capturing,
or trying, them, it is of no consequence where, or upon whom, they have committed
their Crimes, for piracy under the Law of Nations is an offence against all Nations, and
punishable by all Nations. 200
It is apparent that the extreme naturalist view traceable back in English legal
perceptions to Molloy and earlier, was adopted as part of the "Law of
Nations. "The phrase "Law of Nations" was used not to refer to the uniform
municipal natural law of all countries, but in its public law sense of the law
between sovereigns, as the notion of an "offence against all Nations" seems to
envisage an offense defined by a body of law other than the municipal law of
the "nation" affected. Thus, the British Imperial law definition of "piracy"
resting on the intent of the British Parliament alone, was translated into an
assertion of public international law, although, again, no supporting
argument is given and the "natural law" of property and the legal power of a
flag state to determine property rights in a vessel and the goods it carries
seems to be assumed to be a part of public international law. There is no
question of legal injury or "standing" raised, as jurisdiction not only to
capture, but also to try accused "pirates" is asserted to lie with no other
qualification than that the "forcible robberies, or captures of Ships or Goods"
have occurred "upon the High Seas; "jurisdiction is defined then in territorial
terms as if English Admiralty jurisdiction lay within foreign vessels and
governed acts between foreign vessels as long as those vessels were on the
high seas as defined in England. The underlying conception seems to be of
overlapping national jurisdictions, not an assertion of exclusive British
jurisdiction, since the acts amenable to British courts are asserted also to be
"punishable by all Nations. " The nationality of the victim is expressly denied
any role in the jurisdictional jurisprudence. Thus, the position taken by Justice
British 19th Century Practice 239
Story in the United States and rejected by the Supreme Court there as
fundamentally inconsistent with the international legal order embodied by
implication in the American Constitution, limiting the jurisdiction of courts
deriving their authority from that Constitution, was adopted in the United
Kingdom. 201 The logic by which that adoption occurred was precisely the
mirror image of the logic of the young and weak United States: the spread of
British jurisdiction by the assertion of the Parliament without regard to the
international legal order. The confusion between British Imperial law and
public international law, begun by Lushington's citation to a misconceived
"piracy" of the Barbary states and other African societies as if there were a
rule of public international law involved in construing a merely municipal
bounty statute, was completed by the Law Officers of the Crown applying
conceptions of English Admiralty jurisdiction and criminal law to the acts of
foreigners against other foreigners within the solely municipally established
Admiralty jurisdiction of British courts. Indeed, it is a possible reading of Dr.
Harding's Report that British jurisdiction over "piracy" extended to
"forcible robberies" taking place entirely within a foreign flag vessel with
which the British had no connection at all. Only one case has been found in
which British jurisdiction was actually applied to a transaction wholly within
a foreign vessel outside of British territorial waters. 202
The rest of Dr. Harding's Report of 1854, translating into policy guidance
Sir Stephen Lushington's interpretation in the Magellan Pirates case of 1853 of
the Bounty Act of 1850, reveals a conception of "piracy" far more restricted
in scope than the general definitional terms of its first paragraph. 203 As with
the American cases analyzed in chapter III above, it provides for action that
can be rationalized on grounds far less radical, less dependent on assertions of
"naturalist-universal jursidiction" than that paragraph. Obviously, there had
been a complete reversal of position from the days of the Mohamed Saad case 204
a decade earlier when the law seemed a serious impediment to expansive
policy; it now seemed to be the position of the lawyers that the law could be
used as a valid basis for expanding authority still further, but that it was
doubtful policy to use it to its fullest extent; the general assertions of law go
far beyond the advice as to the policy that could properly be pursued under
the asserted law. Harding advised:
3rd. When any reasonable causes of suspicion of the piratical Character of any Ship
exist . . . Her Majesty's Ships may, on the High Seas and beyond the limits of local
Jurisdiction of any Nation, compel such ship to stop, and exercise the right of visit on
board any such ship for the purpose of . . . ascertaining her true character. 205
Once satisfied that a foreign flag vessel is not dominated by "pirates" whatever
might have happened on board, the British authorities should, according to
Harding, leave her, although they might remain in the area to watch if
suspicions persisted. In a port, the local authorities must be called in. 206 This
latter provision seems inconsistent with the result in the Magellan Pirates case
240 The Law of Piracy
where, it may be remembered, the first seizure of the Eliza Cornish occurred in
a port, and the authorities actually in control, Chilean rebels, supported the
seizure. 207 By Harding's Report, if the rebels were to be considered the "local
authorities" then there was no "piracy" in the Magellan Pirates case, but a
denial of justice by those authorities or an exercise and possibly an abuse of
their belligerent rights. If the more distant authorities of the recognized
government of Chile were to be considered the "local authorities," then
Harding's approach would seem to imply that British direct action against the
Segredo was an intervention in internal Chilean affairs; those authorities
should have been consulted first. The passages of Lushington's opinion
referring to piracies "ashore" seem to have been thus overborne by Harding,
despite the word "ashore" appearing in the Bounty Act of 1850. 208 This
"correction" of the meaning of Parliament by the Crown's gloss in disregard
of the interpretation given by the judiciary seems to raise constitutional
questions, but they were not addressed at the time in any known document.
The only detailed instructions contained in Harding's Report relate to the
case in which British criminal jurisdiction was undoubtable:
6th. British ships with their cargoes, and all persons on board of them, should, if met
with on the High Seas, under whatever Flag, in cases of reasonable proof of the actual
commission of piracy by those on board be secured and sent into the most convenient
part of Her Majesty's dominions, with the necessary witnesses against them, to be there
dealt with according to law. 209
Why British courts and not the most convenient court of any sovereign if, as
was asserted repeatedly, the "crime" is one of universal jurisdiction, is not
mentioned.
There are other problems in analyzing Harding's Report. For example, in
defining "piracy" he refers to "forcible robberies." "Robbery" at English
law to be "robbery" must involve the threat of force 210 and the word is used
without the adjective "forcible" in the English statute of 1536. It is not clear
what the function of the adjective is in Harding's Report. Similarly, the
emphasis on property rights seems excessive: was not "murder" to be
considered "piratical" any longer? But Harding's Report was an internal
British document, not the basis for any definition of "piracy" outside of the
British Navy, as far as can be seen, and it was the actions of the British Navy
defended by the Foreign Office that become the evidence of public
international law, not the unpublished Reports of officials whose views in
their technical details did not form the basis of legal precedents in public
international law.
Applying the New Definition
The Kwok-A-Sing Case. The one case applying to the full Harding's and
Lushington's notions of universal jurisdiction was The Attorney- General of Our
Lady the Queen for the Colony of Hong Kong and Kwok-A-Sing, an appeal by the
British 19th Century Practice 241
Government from the discharge of Kwok-a-Sing from custody in Hong Kong
upon a writ of habeas corpus. 211 Kwok-a-Sing, a Chinese national, had
apparently participated in a mutiny on board a French vessel on the high seas
in 1871 , alleging that he and others had been kidnapped for slave labor in Peru.
The prisoners had killed the captain and several of the French crew and taken
the vessel back to China. Kwok-a-Sing took refuge in Hong Kong, where he
was arrested by British authorities as they believed themselves authorized and
required to do under the Treaty of Tientsin of 1858. 212 The article of that
treaty requiring China to capture and punish "pirates" who plunder any
British merchant vessel 213 was clearly not applicable because no British
merchant vessel had been plundered by Kwok-a-Sing. The treaty contained
no other term relating to "pirates," implying that "universal jurisdiction"
and universal extradition were not in the contemplation of the drafters. But
the Treaty did provide that "If criminals subjects of China, shall take refuge
in Hong Kong . . . they shall upon due requisition by the Chinese authorities,
be searched for, and on proof of their guilt be delivered up." 214 There were a
number of technical problems not relevant for purposes of the current
analysis. For example, the Hong Kong ordinance under which the British
authorities acted was based on the continued validity of the prior extradition
language in the Treaty of the Bogue of 1843, which had been superseded by
the Treaty of Tientsin. 215 The key point for now is that the British Court in
Hong Kong and the Judicial Committee of the Privy Council both decided
that extradition of Kwok-a-Sing to China was not authorized or required by
the Treaty of 1858 with regard to his acts on board a French vessel on the high
seas; that if the very general language of that Treaty covered the acts of
Kwok-a-Sing it was only if there were universal jurisdiction regarding
"piracy," and if there were such universal jurisdiction, the jurisdiction of
Hong Kong would suffice. The logic is identical with that of the 1864
majority in In re Tivnan. 216 Kwok-a-Sing was held for trial as a "pirate" jure
gentium in Hong Kong. 217 Whether he was ultimately convicted is doubtful;
there was much questionable in the Privy Council's definition of "piracy "jure
gentium, which rested entirely on a superficial reading of Sir Charles Hedges 's
charge in Rex v. Dawson 21% and on the view that the carrying away of the ship
itself to China was "robbery" rather than mutiny (which was conceded to be
a matter for French law only). 219 The Privy Council carefully refrained from
attempting to determine questions of evidence of intention that were not
before it, indicated that without such evidence as would convince a jury of
Kwok-a-Sing's felonious intent, he would not have been a "pirate" even
under Hedges 's charge. The conclusion of the Privy Council was clear on the
jurisdictional point, favoring universal jurisdiction in a situation in which
such a position would allow a British colonial court to pass judgment on the
acts of a foreigner against other foreigners in a known foreign vessel on the
high seas. The logic by which that conclusion was reached seems wholly
242 The Law of Piracy
lacking unless regarded as implicit in the statement of the substance of the
offense of "piracy" as given in its broadest form by an English judge in 1696,
and the application of the logic of a case in 1864 under which universal
jurisdiction was appealed to in a highly political case apparently to avoid
extraditing persons who lacked the animum furandi, the "felonious intention"
required by Hedges's charge. There is an irony in the evolution of two rules
adopted to suit special circumstances to become a single general rule
applicable in the absence of special circumstances, and it may be questioned
that the legal logic would have been as persuasive to a non-British tribunal or
a British tribunal at a time when British commercial interest and naval
dominance and national pride were not so great. But this leads to mere
speculation.
The Law Officers Retreat. But while the Privy Council was applying
conceptions of international law to expand British municipal law to the
"piratical" acts of Chinese in French vessels on the high seas, the international
legal order's restrictions on applying municipal law conceptions to the acts of
foreigners beyond British legal interest were becoming more apparent to the
Law Officers of the Crown and local administrators as a result of incidents in
Latin America, Spain, the Malay Peninsula and in the Persian Gulf.
In 1879 British shipping in the Gulf, then nominally ruled by the Ottoman
Empire, was obstructed as it had been in 1820 by Arab fleets. On 2 December
1879 the Law Officers addressed the question directly. The British
Government was not justified, according to Drs. Holker, Gifford and Deane:
On the ground of . . . the inability and unwillingness of the Turkish Government to
prevent outrages on British subjects and British commerce in the Persian Gulf, in
authorizing the commanders of Her Majesty's ships, against the wishes of the Turkish
Government, to pursue the pirates and marauders in question in Turkish waters, and
destroy their strongholds on the Turkish mainland. 220
The justification for British action, if any, was not to be universal jurisdiction
or any international legal rules regarding the suppression of "piracy," but
reprisal:
Should the Porte neglect to take any measures for the security of British trade in the
Persian Gulf, Her Majesty's Government may, consistently with international law,
endeavour to obtain from the Porte permission to act in Turkish waters against pirates
and marauders, and should this permission be refused, and the Porte continue to allow
piracy in its waters, Her Majesty's Government might not improperly make such
negligence a ground for reprisals. 221
Having an eye to the technical problems of applying the international law
relating to "reprisal" in the circumstances, the Law Officers a year and a half
later found a more satisfactory rationale:
We do not regard the proposed measures as 'reprisals,' but simply as necessary for the
protection of life and property, in the continued absence of the maintenance of authority
by the Power on which that duty would more naturally devolve. 222
British 19th Century Practice 243
Action was apparently taken on the basis of this rationale in July 1881
under an instruction from the Foreign Office (Sir Julian Pauncefote)
to the Secretary of the Admiralty:
I am accordingly directed by Earl Granville [the Foreign Minister] to request that you
will move the Lords Commissioners of the Admiralty to . . . instruct [the British
Naval Officers in the Persian Gulf] not to allow themselves for the future to be too
much hampered by the 3-mile limit in pursuing and capturing pirates, especially as the
Turkish authority on the coast is at many points of a very shadowy description.
They will scrupulously avoid any collision with Turkish cruizers or troops, and they
will hand over to the Turkish officials all offenders captured in Turkish
jurisdiction. 223
It seems clear that the word "pirates" was used by Pauncefote only as a
descriptive word; the legal results that had been implied by Harding's
Report in 1853 and its expansive view of British jurisdiction, did not flow.
Similar limitations on the actual application of the rules of law asserted
by Lushington and Harding were found when these natural law and
universal jurisdiction conclusions confronted reality. Harding's Report had
mentioned lack of any "lawful Commission or authority." Even accepting
Lushington's and Harding's view as to the reach of concurrent Admiralty
jurisdiction into the territorial waters of a foreign state, and ignoring
Harding's apparent change of mind between the general assertions of his
first paragraph and the far more sensitive and carefully limited policy
suggestions in his third and succeeding paragraphs, 224 the British naval
authorities found their scope for action restricted by questions of "lawful
Commission" wherever they turned. The question was referred to the Law
Officers of the Crown in connection with the seizure of a British vessel at
anchor in a Venezuelan port by Venezuelan rebels in 1870. Accepting the
Lushington-Harding definition of "piratical acts" and the reach of British
jurisdiction in foreign territorial waters, assuming a universal jurisdiction
over "pirates" to lie in British Admiralty courts, although a more certain
jurisdiction existed resting on the nationality of the victims, 225 Drs. Collier,
Coleridge and Twiss still had difficulties:
[I]f the Maparari had no 'Commission of War ' or 'Letters of Marque, ' [the seizure] was
an Act of piracy, the cognizance of which is within the Admiralty Jurisdiction of
Nations, and as the Republic of Venezuela has declined to exercise her territorial
jurisdiction, which is concurrent what that of the Admiralty of Nations, Great
Britain may properly exercise the latter, and direct the Maparari to be seized wherever
she shall be found upon the seas by a British Cruizer, and carried for adjudication on a
charge of piracy before the most convenient British Court of Vice Admiralty.
We assume that there has been no recognition on the part of Her Majesty of the
insurgents ... as belligerents. 226
244 The Law of Piracy
Apparently, a group exercising "belligerent rights" could issue a "lawful
Commission" to commit "acts of piracy," and such acts if performed under a
belligerent's commission would not carry the legal result of "piracy"
whatever Lushington's reading of the intention of the Bounty Act or 1850.
The key was to be British "recognition,'' a key that if applied to the Barbary
states and North African societies referred to by Lushington in the Magellan
Pirates case, would have reversed his dicta that they were "piratical."
"Recognition" was apparently viewed as a political act of discretion; the Law
Officers clearly imply so in their final paragraph quoted above, which
envisages the possibility that "recognition" had been granted and that the
granting or not of "recognition" as belligerents to the Venezuelan rebels was
an act performed independently of their analysis of the law by the political
branch of the government, the Crown. Thus, the fundamental approach of
the Law Officers in 1870 seems to have been "positivist" in the Gentili
sense. 227 The legal label "pirate" was regarded a thing possible to attach as a
matter of policy, not of law, even when the roots of the violence constituting
the "act of piracy " were political ambition and not private gain. "Piracy" for
private ends appears to have been left to the criminal law of individual states
providing for the protection of property rights defined by overlapping and
consistent municipal laws, including the right to be secure in a vessel flying
the flag of a prescribing state.
On the other hand, when this frankly positivist, policy-oriented view was
adopted by France in connection with the Spanish insurrection of 1873, the
Law Officers of the Crown took an even more restrictive view of "piracy,"
arguing that some underlying international law set limits to the discretion of a
state to classify rebels as "pirates. " The imperatives of the fundamental rules
of the international legal order were coming to be seen as inhibiting
interference in the political struggles of other states and limiting the
"standing" of a state to enforce even public international law when the
incident is not linked more or less directly to the legally protected interests of
the interfering state. Earl Granville, Secretary of State for Foreign Affairs in
Gladstone's Cabinet 1870-1874, asked the advice of the Law Officers, Drs.
Coleridge, Jessel and Deane, about the incident, which involved Spanish
insurgents. At issue was France's position that third states have "the right of
treating the rebel Spanish ships as pirates . . ., under the general law of
nations." The Law Officers replied:
The Spanish rebel ships have not committed and are not cruizing with the intent to
commit any act which a foreign nation can properly call or treat as a piratical act. . . .
[Therefore,] they cannot properly be visited or detained or seized unless the
Government which orders or approves of such visit, detention or seizure is prepared to
support the Government at Madrid against all persons and parties who may be in
insurrection against that government. 228
British 19th Century Practice 245
While the conclusion seems to be overstated somewhat, the point is clearly
made that once the rebellion has reached a certain point, Spanish classifica-
tions do not matter and international law directly would require the rebels to
be treated as belligerents; that the insurgents would be justified in treating the
British (or French) as belligerent allies of the defending Spanish government,
and exercising belligerent rights as enemies against British (or French)
commerce with Spain, rather than being restricted at law to exercising only
those rights that public international law gives to belligerents to exercise
against neutral commerce. There is no mention of British "recognition" as
the threshold at which the law of war comes into play, and it seems to be
assumed that that great area of law is brought into play by an objective
examination of the facts. The approach taken by the Foreign Office with
regard to the Greek insurgents of the 1820s was thus confirmed 229 and the
limits reality fixes on legal policy even within a basically positivist
framework. The "lawful Commission" phrase in Harding's Opinion of 1854
was turning out to be less capable of policy manipulation than might have
been expected.
The Empire Advances
The Selangor Incident. At the same time, under the instructions issued by the
East India Company and the Colonial Office 230 after the Mohamed Saad
case 231 the limits the international legal order in its most fundamental sense
places on the legal power of statesmen to use technical, not analogous,
emotive legal concepts within the order, such as "piracy," to justify political
action were becoming equally apparent. It would be tedious to repeat the
primary research done by others where the legal points are adequately
covered even though not the direct focus of the historical analysis, but one
short recitation based on excellent research can illustrate the point 232 and a dip
into some primary sources of the early 1870s that have been misconstrued or
ignored by historians will make the argument complete. 233
The Mohamed Saad decision was rendered by a British court in Penang, a
British colony at the northern entrance to the Straits of Malacca, on 26
October 1840 and the local authorities were instructed as to policy in light of
that decision on 31 December 1841 . In 1851 a Chinese junk apparently owned
or financed by merchants based in Singapore 234 was captured by the Malay
Sultan of Trengganu. At the time, Trengganu was regarded as legally
subordinate to Thailand but treated by the British colonial officials in most
ways as if an independent state. 235 The Sultan of Trengganu held a brief trial
of the survivors of the junk, and executed them in his own territory as
"pirates." The British colonial officials investigated and concluded that the
conviction rested on insufficient evidence; the British demanded $11,000 in
compensation for the Singapore merchants whose investment in the junk's
voyage had been lost. On 9 October 1851 the British colonial officials
threatened to seize and destroy the Sultan's property in Trengganu if he did
246 The Law of Piracy
not pay the sum demanded. The matter was referred by the local British
authorities to their superiors in India, who sought legal advice. The advice
was that the seizure of the junk violated international law and that the
demand for reparations was well based. When the Sultan still refused, the
Supreme Government 236 backed down, conceding that the Sultan's adminis-
tration of Trengganu law in Trengganu was prima facie no concern of the
British authorities, and that a judicial decision in the face of conflicting
evidence could not be clearly rejected as a denial of justice or otherwise
improper. The Government of the Straits Settlements was reproved for
endangering friendly British relations with Thailand. In fact, there is some
evidence that the junk had been seizing Trengganu traders' ships and property
without any legal warrant in British or Trengganu law, and that it and other
junks were closely connected with merchants or other agents in Singapore.
In December 1855, in response to complaints of "piracy" by similar
vessels with similar connections, Mr. E.A. Blundell, the Governor of the
Straits Settlements, recommended to the Supreme Government that British
ships be empowered to seize suspected "pirates," "not . . . hampered with
common law definitions of piracy. " This request, amounting to an attempt
to apply the British Imperial law definition of the 1853 Magellan Pirates case
as a legal basis for political action in disregard of the more secure
"overlapping municipal law definitions" approach implicit in the
Mohamed Saad case 237 and the definitions of the "law of nations" that Dr.
Lushington and Dr. Harding were trying to translate into assertions of
public international law between sovereigns, was rejected by the Supreme
Government. Blundell was advised that the Supreme Government felt it
had no legal power to authorize "pirate-hunting" without regard to the
limits of jurisdiction and definition contained in English law. Thus, when
legislation was finally enacted to authorize British ships to act against
suspicious vessels it was confined to vessels in the ports of the Straits
Settlements and to British flag ships on the high seas. 238
The most enlightening correspondence in the Malay area occurred when an
ethnic Chinese merchant in Penang in 1871 reported that his junk had been
"pirated" and the crew and others murdered by nine "passengers" who then
took the vessel to port in the Malay state of Selangor. Whether the offense if
measured by English law would have been "piracy" as defined by the
traditions and cases codified by Hale and developed in the cases analyzed
above, or "mutiny" because occurring in a single vessel and wholly governed
by the law of the flag state of that vessel, and not international law or British
Imperial law at all, and whether "piracy" at English law includes the crime of
"mutiny," were not considered in the correspondence arising out of the
incident. Instead, the word seems to have been used in the vernacular sense
attributed by Dr. Lushington to the Parliament in the Bounty Act of 1850.
Thus, the problems of jurisdiction that arose illustrate the limits that the
British 19th Century Practice 247
international legal order put on British Imperial law and the thought
processes by which the British translated a term from English criminal law,
via the "law of nations" conception of "natural" criminal law that all states
were obliged by reason and morality to adopt, through British Imperial law
attributing an underpinning in the international legal order to actions
determined on a parochial policy basis by British officials alone, to an
autointerpretation of asserted rules of general international law, to the
enforcement of "international law, "obliging a Malay state as a subject of the
international legal order to obey British demands that it adopt rules of
municipal law in British interest.
Shortly after the taking of the junk was reported, the Acting Governor of
the Straits Settlements, Colonel Sir Archibald E.H. Anson, ordered
Commander Bradberry as captain to take the Colonial Government's steamer
Pluto with British police on board to search for it. On 28 June 1871 the Pluto
anchored about three miles off the mouth of the Selangor River and a boat
was sent upstream to take a letter from Anson to the Sultan requesting help.
Arriving at the Malay village, Bradberry found the "pirated" junk there and
her cargo already partially distributed in shops and stores maintained by some
Chinese merchants. He "boarded her and took six prisoners, who [sic;
whom?] we left on board the junk in charge of Mr. Barnum and Mr.
Daniels. . . . We now returned to the [Pluto] accompanied by Rajah
Moossa . . . and steamed ... up the river. " 239 Bradberry proceeds:
[HJaving got the full permission and assistance of the Rajah [Moossa] to re-ship the
cargo on board the junk, as also to capture as many of the pirates as possible; . . . we had
taken [by 9 P.M.] three more prisoners . . .; on capturing the fourth — evidently one of
the head pirates . . . [a] Chief told us to give him over to his charge . . .; we did so, and the
prisoner escaped . . . pursued by Mr. Cox; this excited the Malays, who immediately
drew their krisses . . ., 240 causing most of us to take to the boats . . . leaving . . . Captain
Bradberry and Mr. Cox, still on the beach; the boat now returned . . . and the remaining
party retired . . .; shortly after our return on board two guns were fired, and then all was
silent. . . . Rajah Moossa gave us all the assistance possible, and would have done more
had it not been for him being in bodily fear of Rajah Mahdie. 241
1 P.M., . . . proceeded, with junk in tow, for Penang, where she now lays [sic; lies?] in
safety. 242
This report, signed by Commander Bradberry, is significantly different
from the report of the same incident by Mr. Cox. It seems clear that
Bradberry 's general language assumes a legal effect for parts of the
transactions described that was not objectively intended by the Malays
involved:
After . . . hesitation, Rajah Moossa allowed us to remove the goods, and remained by us
until 7 P.M., during which time the goods were carried from the different Chinese shops
to the beach, and from thence on board the junk. . . . [T]hree Chinese pirates . . . were
arrested . . . and were at once dispatched on board. . . . [A]nother Chinese pirate was also
arrested, and, . . . was rescued by a Malay Chief. . . although pursued by me. . . . [That
248 The Law of Piracy
Chief, a Rajah,] collected a large body of armed Malays, who drew their weapons . . .
and it was with extreme difficulty . . . we managed to reach the vessel ... as numbers of
the police and crew of the steamer were obliged to swim. . . . Two guns from Rajah
Mahdie 's stockade . . . were fired at us at intervals. . . . Rajah Moossa called on board at 8
A.M. . . . [and] told me . . . that Rajah Mahdie . . . and [three named Chiefs] were all
acting in opposition to him.
I believe that six of the Chinese pirates are still at Salangore, under the protection of
these Chiefs, who . . . have connived at all their actions. 243
The probability that those whom the British officials were calling
"pirates" were actually people with a license to raid shipping in the waters of
Selangor and possibly at sea, and that license was issued by nobles with both a
claim to royal authority and the reality of legal and political power in
Selangor despite the adverse claim of the Sultan "recognized" by the British
and of his son, Rajah Moossa, is confirmed by what happened next as reported
by Commander Robinson of H. M.S. Rinaldo:
In consequence of a requisition from you on the 30th [of June] ... I started ... to
Salangore, for the purpose of seizing the six pirates still at large . . . and to take such
measures as may seem best for the punishment of those Malays who resisted the Colonial
Officers and men in their attempt to secure the pirates. 244
[Anchored the Navy vessel H.M.S. Rinaldo] off the town of Salangore. . . . Sent boats
away manned and armed to search both sides of the river and vessels at anchor. 245
Lieutenant Maude of the Royal Navy led a party ashore and found Rajah
Mahdie. Maude relates that Mahdie agreed to return with him to the Pluto,
which was anchored with the Rinaldo at the mouth of the river, but the
description sounds more like an arrest:
The Rajah went between the boat and the small-arm men, with about twenty men around
him. He was told that the boat was ready, when he replied that he would not go now. 246
Shots were fired against the British party and a scuffle ensued. Maude was cut
on the wrist by a kris; six British men were wounded, one mortally; Mahdie
escaped. Robinson continues:
I decided to return to Rinaldo . . . and to send Pluto to Penang with wounded.
I . . . took the responsibility of incurring all risks for the sake of punishing the pirates for
their treacherous attack . . . and for teaching them to respect the flag for the future.
[The next morning at 6:15 a.m.] on the southern entrance of the river, fire was opened
upon us from these forts . . . immediately answered by the Rinaldo; . . . [we] rendered
their chief defences untenable.
At 5:30 [p.m.] ceased firing, after having silenced all the forts and partially burnt the
town ... on the opposite bank.
The Pluto returned yesterday at 4.30 P.M. from Penang with . . . the whole of [British]
disposable force. . . . [The following morning] no return was made to our fire ... so after
British 19th Century Practice 249
a little . . . the disembarkation soon commenced. . . . [W]e spent the day in utterly
destroying this nest of pirates. The town of Salangore is completely burnt down. . . . Had
it been possible to make terms with any one, I might have spared the town on the
condition that the six pirates ... be given up. I would also have inflicted a fine to pay for
the expenses of this expedition. Failing this we have done all the damage we could.
A flag of truce was shown at 10 A.M. at the landing-place . . . but those who displayed it
proved to be people of no importance, whose object was simply that a few houses on that
side be spared. 247
The "nine" men apprehended by the British force under Commander
Bradberry were taken to Penang and charged before the British colonial
court with murder and piracy. 248 There seems to be no record of their trial,
if any, in the available documentation. The British advised the Sultan on the
appointment of another of his sons, Tunku Dia Oodin, as "Agent" with full
powers to rule in Selangor, and the British found themselves deeply
enmeshed in the complicated internal politics of that sulanate. 249 Lord
Kimberley approved "general countenance and support" for the Sultan and
Oodin, but drew the line at "material assistance." 250 Nonetheless,
Commander obinson had in the meantime instructed Commander
Blomfield of H. M.S. Teazer that:
The object [of our Naval presence] is to prevent Rajah Mahdie from returning to
Salangore, and to support by your presence the friendly Malays.
It would be advisable to explore the river of Salangore as far as practicable.
Armed proas [prahus] of a suspicious nature in that river you can capture. 251
The British Naval authorities supported Commander Robinson in this:
[N]o action should be less energetic and decisive, to rid the sea of intolerable and
merciless Malay pirates, than that adopted by Commander Robinson. 252
The Legal Tangle. The legal questions were raised by the former Chief
Justice of the Straits Settlements, now retired, Sir Peter Benson Maxwell, in a
letter to the London Times dated 9 September 1871. 253 Relying on local
newspaper accounts and, presumably, the private correspondence of friends
in Southeast Asia, Maxwell reviewed the entire procedure. He construed the
first mission sent by Col. Anson, two police officers and 20 men in the Pluto, as
a party sent with a letter to the Sultan, "requesting, apparently, the
extradition of any of the malefactors who might be found in his territories,
and the restoration of the captured cargo." The conduct of Raja Musa
[Moossa] in response, in his view, "was irreproachable." The first problems
arose, in Maxwell's opinion, when "a seventh Chinaman was pointed out by
one of the junk's crew as a member of the gang; and he was at once arrested. "
Maxwell went on:
But the man appealed to Rajah Mahmud, and this subordinate [to Raja Musa] officer
procured his liberation, partly, according to the newspapers, by threats, and partly by a
250 The Law of Piracy
promise to produce him at a future time if required. Hardly, however, had he been set at
liberty before the Straits policeman pursued and attempted to recapture him. Mahmud
would not permit this. . . .
and the scene with drawn krisses and a retreat by the Straits police under Mr.
Cox was the result. Maxwell then put the situation into a legal context:
Whether the Malay chief [Mahmud], in requiring the release of the Chinaman was
protecting an innocent man or screening a heinous offender does not appear; but let us
assume . . . the latter. ... As to the attempt of the colonial police to arrest the man on
Malay territory, it is hardly necessary to observe that they had no more right to do such
an act there than a French police agent has to arrest a Communist 254 in the streets of
London; and it may account for the irritation which the Malays displayed by retaining
some of the merchandise.
It is noteworthy that Maxwell nowhere uses the word "pirate" as a legal
word of art; indeed he treats the initial transaction as a routine matter of
international cooperation in the rendition of accused criminals, with the
Malay state of Selangor considered as a matter of law fully equal to Great
Britain, and Britishjurisdiction over the escaped "malefactors" as resting on
their violation of the law of England in a ship flying the British flag.
Maxwell seems to have seen printed Colonel Anson's actual instruction to
Commander George Robinson, Captain of the Rinaldo:
The Acting-Governor, on being apprised of what had happened, addressed a request to
the commander of the Rinaldo 'to arrest the pirates who were still at large' in Salangore,
and 'to take suitable measures for the punishment of the Malays who had resisted the
colonial officers in their attempt to secure the pirates'.
The word "pirates" is Anson's, not Maxwell's.
Before proceeding with further legal analysis, Maxwell raised the question
of legal authority in Raja Mahdie and Musa's brother-in-law, Tunku dia
Oodin:
[F]or the last four years a private war has been going on in a part of the Sultan's
territories between Mahady [sic] on the one side and Tunkee dia Udin [sic], the
son-in-law of the Sultan, on the other; and that the latter, who had been appointed a
Governor by the Sultan, had had his appointment subsequently revoked. . . . The Sultan
always abstained from interference in the dispute.
As Maxwell reconstructed the later events, 255 the Sultan's "renewal" of
Oodin 's commission was imposed by the British through an ultimatum to
which the Sultan bowed most reluctantly; the legal effect of the transaction
was thus dubious in Selangor's constitutional law whatever the British
interpretation of Oodin's authority.
Maxwell argued strongly on legal grounds that the entire transaction by
Anson should be condemned:
In the first place, what power has a colonial governor to arrest offenders in a foreign
country, and to punish the subjects of that country who obstruct him there? Such an act
by the armed force of a State is an act of war; and if a colonial governor has not power to
British 19th Century Practice 251
make war, how will Colonel Anson justify this hostile descent on the territory of a
prince with whom England was at peace, to arrest not only criminals who had taken
refuge there, but even subjects and officers of the prince? . . . [W]as not the descent of
armed men on Malay soil for [Rajah Mahdie's] arrest . . . the threat that force would be
used to deprive him of his liberty, violence enough to the man and his country? How
much further were we privileged to carry hostilities before the Malays acquired the
right of defending their officer and repelling us?
After then questioning Anson's judgment as to the wrongfulness of Mahdie's
resistance and the justifiability of a punitive response, Maxwell turned to the
role of international law and the respective places of Great Britain, Selangor,
and the law of "piracy" in that system:
It may be said that the Malays are not within the pale of civilized nations; indeed, one of
the local papers rings the changes on the "piratical" tendencies of Salangore, and
Captain Robinson puts his finger on a passage in Horsburgh's "sailing directions," in
which the old navigator describes the place as having "always been a piratical haunt."
He also speaks of some vessels which he found and burnt there as "piratical" war prahus.
Even if all this were true, it would be enough to answer that Salangore was not attacked
because it was a piratical haunt. Neither its Government nor its inhabitants had
committed any act of piracy. But it is not true that Salangore is "a piratical haunt.". . .
There is no such thing as a piratical state there — not even, I believe, such a thing as a
prahu armed and manned as a professional pirate. Unquestionably murders and
robberies are occasionally committed in the Straits of Malacca by Malay and Chinese
malefactors, who are the subjects or take refuge in the territories of the Rajahs of the
Peninsula; but what happens then? We have extradition Treaties with several of those
States, and the criminals are delivered up to justice. It was under such a Treaty, made in
1825, that the demand for the Chinese criminals was made in the present case. 256 Such
demands are by no means rare; they are usually attended to with respect and even
alacrity, and the conduct of [Raja Musa] shows that there was no disinclination on the
part of the highest authority of the State to comply.
Maxwell was furious about Robinson's military action:
Such executions are not glorious even when they are necessary; for what can Malay
stockades and guns do against the ships and artillery of Europe? But when they are not
necessary, when, on the contrary, they are unjust and wanton, they . . . can bring only
discredit and hatred upon us, and if they are not sternly repudiated by our Government
the face of England, in Oriental idiom, will be blackened, and her name will stink.
This was an attack not to be ignored. The first response was another letter
to the Times signed "Singaporean," apparently arguing that the "piracy" in
the area was supported by one of the Rajahs competing for local power in
Selangor and that the British interest in trade and the natural law protecting
private property justified intervention to eliminate that "piracy" and support
the "legitimate" Sultan, looking forward to Selangor being opened to further
trade in due course as a worthy result of Col. Anson's action. 257 Faced with
what seemed a conflict of factual assertions, the Times editors refused to take
sides between "Singaporean" and Maxwell. In their opinion, the issue really
was only whether the destruction carried out by Commander Robinson on
Col. Anson's orders was disproportionate to the military need. It seems to
252 The Law of Piracy
have been assumed that British interference was in principle justifiable
because "these rebels, already in arms against the Throne, interfered, and
attacked the British ships into the bargain." 258
Maxwell, responding directly to "Singaporean" in the Times, apparently
before he had seen the Times lead article, 259 rephrased his legal argument:
I will take [the facts] as ["Singaporean"] would have them . . .: — A demand was made
by one State on another for the extradition of a criminal refugee; the man is arrested and
delivered up, but he is rescued by the lawless or insurgent subjects of the surrendering
State, and the officers of the demanding State are insulted, threatened, and fired at. The
latter Power, without complaining of the wrong done or demanding of the ruler the
punishment of its guilty subjects, instantly dispatches a man of war to arrest, on its ally's
territory, both the rescuers and the rescued; and this force, because it meets resistance in
executing these measures, burns down the town in which the culprits have shut
themselves up, and which they hold in defiance of their Sovereign's authority. And
further . . . the invader finishes off by requiring the Sovereign of the invaded territory to
appoint the nominee of the former his Maire du Palais. 260 Now, call that Sovereign the
Queen of England, call the soil British soil, and call the man of war American, and I
should be glad to know in what temper public opinion in England would listen to
Jonathan's [Uncle Sam's] protestations that he had 'never intended to make war' on
Great Britain, but only to arrest on her territory criminals and their accessories after the
fact, a piratical, rebellious, and insolent crew; that he had 'intended to settle the matter
amicably, ' and would have done so if he had not been resisted; and that as to the Maire du
Palais, it was an admirable institution, which would 'work well' in 'opening up the
country.'
... I expect to hear, of course, that the rules of international law are not applicable to
petty Malay States, just as I have often heard it said that our municipal law was too good
for our Oriental subjects. But if international law be merely the expression of sound
international morality, 261 why should we refuse to Malays the justice and consideration
which we accord to greater Powers? ... I trust that we have not one measure for the
strong and another for the weak; and that, while ready to push conciliation and
concession to all reasonable lengths in the West, we do not thirst for some compensating
glory in the destruction of cheap sheds . . . and, I suppose, cheap lives in 'the beneficent
climes of Malayria.' 262
This eloquent plea that the normal rules of international law, even if
regarded as "moral" law merely, be applied between equal sovereigns
whatever the military or political inequalities (as they apply between Great
Britain and Denmark without question in Europe) even when the government
of the state that is a treaty partner or protector of "pirates" is a Malay Sultan
or a claimant to his authority, while of doubtful persuasiveness to the
race-proud English populace and possibly even the editors in 1871 of the
London Times, 263 had some impact on the more sophisticated British
authorities who had to deal with political realities in the Malay Peninsula.
Col. Anson on 24 October 1871 sent a long dispatch to Kimberley giving his
response to Maxwell's first letter, which apparently had not reached Anson's
desk until the 19th of that month. As might be expected, he used the word
"piracy" in a general political sense with no specific legal content:
British 19th Century Practice 253
[TJhere was no intention on the part of: this Government to wage war upon, or to
interfere injuriously with the country of Salangore; . . . the question at issue was
treated purely as one of piracy, and that this Government, when it found that the junks
and pirates were at Salangore, cooperated with the Sultan's officers under . . . Rajah
Moosa . . . in capturing some of the actual perpetrators of the crime on board the stolen
junk; and that Captain Robinson . . . punished the rebellious Rajahs . . . who had
interfered to support the pirates against the authority of the Sultan, and who had fired
upon the . . . 'Rinaldo.'
With regard to Sir Benson Maxwell's statement that the police 'had no more right to do
such an act there, than a French police agent has to arrest a communist in the streets of
London' putting aside the absurdity of the comparison, I presume it could hardly be
objected to, that if a nobleman came to interfere with the Government official who had
just handed over the communist to the French police agent in the streets of London, and
assisted the communist to escape, the police agent would be justified in assisting the
Government officials in running after and recapturing him; and this corresponds to what
was really done by the police at Salangore. 264
Apparently Commander Robinson also conceived of "pirates" as an
undefined class that might include rebels or others who interfered with
British actions in the Peninsula. In his report to Col. Anson regarding
Maxwell's letter, he wrote:
The war proas [prahus] are called 'piratical' by me because they sided with the pirates,
and fired upon the 'Rinaldo' while the ship was returning the fire from the forts. 265
Commander Blomfield 266 of H.M.S. Teazer reported on his entire
proceeding to Vice-Admiral Kellett after Maxwell's first letter had been
published in London, but before news of it reached Anson. He too used the
word "piracy" in a political sense, apparently referring generally to Malays
or Chinese who obstructed British trade in Selangor without the direct
commission of the Sultan:
The object of my mission . . . was to convey a letter . . . demanding that the remainder of
the pirates ... be given up to H.M.G. . . . also that a ruler in whom our Government
could place implicit confidence should be appointed.
These demands were made with the 'Teazer V guns bearing upon the Sultan's palace,
and an answer insisted upon within twenty-four hours.
[T]he Sultan told us . . . that the pirates had already been given up at Malacca, with the
exception of one Chinaman, who had died, and whose queue was sent in proof.
[I]t appeared to me a good opportunity for opening up the rivers, and substituting law
and order for piracy in the Salangore coast, by giving countenance and active support to
a Governor of our own recommendation. 267
Without resolving the question of who was or was not a "pirate" in the
contemplation of British naval authorities, 268 Kellett instructed his subordi-
nates "that no such expeditions be undertaken in future without reference to
me, unless immediate action is absolutely necessary, in which latter
254 The Law of Piracy
case . . . diplomatic and political affairs be carefully avoided." 269 Of course,
Col. Anson was the chief British political officer in the area in 1871 , and it is not
clear precisely what this instruction was actually intended to accomplish.
Dropping the Legal Facade. The impact of the Rinaldo affair was in fact great on
the political officers of the Government of the Straits Settlements. They never
did admit error in the actual case, although it is possible to see in their rewriting
of legal relationships, having the Sultan of Selangor appear the undoubted
sovereign there, cooperating fully in attempting to discharge his supposed
obligations under the Treaty of 1825, and the British acting throughout merely
as his agents or with his permission, a hinted confession that absent these
classifications of fact the episode was of dubious legality regardless of the label
"piracy." It would be tedious in this place to delve more deeply into the
troubled affairs of Selangor and the complications that led to overt British
intervention in 1874 and the conquest of the sultanates of the Malay Peninsula. 270
But sensitivities were raised by the Rinaldo affair; the local correspondence that
followed it regarding "piracy" and international law clearly assumed the
equality as sovereigns of Great Britain and each Malay sultanate.
There were several illustrative incidents between 1871 and 1874 in the
Straits of Malacca and the waters of the West coast of the Malay Peninsula,
including an attack on the ship Fair Malacca on 12 December 1872, which
Governor Sir Harry St.G. Ord refused to call "piracy:" "I do not find it
clearly established . . . that this vessel was attacked in the open sea, or under
circumstances which would justify a charge of piracy against the junks." 271
The Solicitor-General, David Logan, rendered an opinion to Governor Ord
on 22 December 1872 that the firing on the Fair Malacca "cannot be said to have
been committed 'where all have a common and no nation an exclusive
jurisdiction,' i.e., upon the high seas," and that therefore it cannot be
classified legally as "piracy. " 272 Ord asked Logan to reconsider his opinion on
the ground that the authority of the Sultan had been effectively superseded by
anarchy. 273 Logan replied that the British were justified in looking into the
matter and taking the suspicious junks in to the nearest British port for a
judicial investigation, but concluded: "I am not disposed, without more
reliable evidence, to decide that these junks were piratical, as such a
conclusion, if correct, might justify any man-of-war in dealing with them in
the most summary manner on the spot." 274 One of the junks was ultimately
released for lack of evidence, and the other condemned in an in rem proceeding
by the British court. Nobody was tried for "piracy;" all the accused were
released. 275
On the other side, a British naval commander named Denison reported to
Ord and Vice-Admiral Sir Charles Shadwell, the Commander-in-Chief of
the China Fleet succeeding Vice-Admiral Kellett, from the Zebra in Penang, 3
January 1873, that he had boarded a Chinese junk in a Malay river in the
following circumstances:
British 19th Century Practice 255
[A]s there was nothing but anarchy in the place, any vessel [falsely] flying a recognized
flag of whatever nation was a pirate. I merely came as a policeman of the seas to seize a
pirate, and . . . would not interfere in their dissensions. ... I took two . . .junks and left
them four, not being able to prove their having committed piracy.
I then addressed the head man of the Rajah . . . that I did not come from the Governor,
but ... I only came to seize the junks that happened to be in his dominions, as he could not
help us. 276
The political situation changed most dramatically with the arrival in the
Straits Settlements of a new Governor, Sir Andrew Clarke, who thought like
Denison and did not seem to think it necessary to consider legal advice as to
the definition or legal results of attaching the word "piracy" to anything. His
use of the word "piracy" as if to justify the most extreme military measures
entangled him and his successors in the very web of Malayan dynastic and
other power struggles that they had been most strongly instructed to avoid.
The trail into this thorny thicket seemed smooth as the Governor
apparently felt that his knowledge of the legal qualifications and results of the
term "piracy" were adequate, and he got hopelessly confused only when
trying to enforce what he believed without legal advice was in fact the law.
On 1 1 January 1874 there was a sea-borne attack on the land-based lighthouse
at Cape Rachado in Selangor. The situation was described by Governor
Clarke as follows:
A piracy . . . has recently been perpetrated ... in the territory of Salangore.
[T]he men (or, at least Several of them) who committed this act, came to Malacca, and
nine have been arrested, of whom one has turned Queen's evidence.
The evidence ... is most conclusive, but a doubt might possibly arise ... as to our
jurisdiction, and it appears to me that the safest course will be to deliver over the
prisoners to the Governor or Viceroy of Salangore, T.D.O. [Tunku dia Oodin], in
whose territory the crime was committed.
[T]hese bona fide acts of piracy by Malays (which must be looked upon as very distinct
from the lawless acts by Chinese, which have been lately put down . . .) are again
becoming frequent, . . . supported now by the sons of the Sultan.
I . . . [suggest] the delivery of the pirates whom we have in custody to T.D.O., who
demands them from us, under the Indian Extradition Act, and providing him with
evidence, require him to try them on the spot.
I . . . [propose] to insist on [the Sultan's] coming on board [a British gunboat], while I
shall require T.D.O. to make a prisoner . . . of his brother-in-law Rajah Yacub . . . and
other suspected Chiefs. . . . T.D.O. will doubtless require support, and material
assistance . . . if any of the pirates should resist. 277
It appears that the new Governor was unfamiliar with the legal analyses of
Judge Sir Benson Maxwell and Solicitor-General David Logan and was using
256 The Law of Piracy
the word "piracy" to refer to mere "robbery" by the law of Selangor, or by
what he would have liked to be the law of Selangor. But calling it "piracy"
seemed to him to give the British an authority to act, somehow, in disregard
of the inhibitions international law would place on one sovereign in its
dealings with another. There seems to have been no doubt in Clarke's mind
that the "piracies" he referred to were authorized by political figures with
some claim to legal authority in Selangor (the Sultan's sons), that the incident
occurred entirely in the territory of Selangor, and that Selangor law, not the
law of the Straits Settlements or international law, applied to the individuals
accused of the "piracy." There seem to be no precedents or logic to support
this translation of a vernacular usage with no specific legal meaning into a
legal term, and it would appear analytically sounder to regard Clarke's usage
as not indicating a legal sense at all, but an emotional excuse for political
action in disregard of the law. 278
The delivery "demanded" by Tunku Dia Oodin had, of course, been
suggested by British officials, and the references to the Extradition Act, being
fundamentally irrelevant to a demand from one sovereign to another, where
treaty controls and not the legislation of either sovereign, are clear
indications that the forms of law being followed were those of British
Imperial law, not public international law. 279 As to the law of Selangor,
Clarke sent two "Commissioners" "to see that the enquiry [by Tunku Dia
Oodin] is properly conducted, and to support T.D.O.'s authority." 280
Apparently, Governor Clarke began to have some doubts about the legal
aspects of these proceedings, and explained his actions (with some gloss that
seems disingenuous in attributing to Tunku Dia Oodin an initiative that seems
almost certainly to have come from Clarke himself) in a way that made the
entire affair a question of policy alone, prompted indeed in part by doubts as
to how a British tribunal would handle the questions of jurisdiction and
definition:
[Although the attack on a lighthouse in Salangore was clearly piracy, jurisdiction was in
doubt] as it was not clear that the crime had been committed on the high seas.
Even were a conviction certain, I felt that any punishment inflicted by us, and in our
territory . . . would be barren of any permanent deterring influence or beneficial result.
I desired to show the [pirates] that they could not be screened from punishment by the
authority and influence of [Malay Rajahs].
I consequently gladly availed myself. . . of the proposal made by T.D.O. ... to demand
these men under the terms of the Treaty [of 1825], as well as under the provision of the
Indian Act for the Extradition of Offenders.
I determined that the authority of the Tunku should yet be covered by still higher
authority, and . . . the Sultan should be the chief responsible agent and approving
power. 281
British 19th Century Practice 257
In fact, the "demand" from Tunku Dia Oodin was a "request" that cited the
British legislation but not any treaty, and came in reply to a British initiative.
It said:
Sir, In reply to your letter of [2 February 1874], I do hereby request that the nine Malay
subjects of Salangore State, now in custody at Malacca, and alleged to be concerned in
an act of piracy in the territory of Salangore, may be handed over to me under the Indian
Act No. 7 of 1854, to be tried and dealt with according to law. 282
In fact, to all the Malays involved, it seems very doubtful that any law was
being applied to the incident other than British law, either a version of the
British municipal law of piracy or British Imperial law defining "piracy" in
ways insupportable by reference to the normal sources of public international
law or the constitutional aspects of the legal order creating distinct and
legally equal international persons in the "states" of Selangor and Great
Britain as propounded by Maxwell. There can be little doubt that the actions
in Selangor called "piracy" by Clarke were part of a continuing "war" in
Selangor, with the "pirates" actually part of the military arm of a faction
which controlled substantial territory and population. 283 To Thomas
Braddell, Clarke's Attorney-General, the constitutional position of Tunku
Dia Oodin in Selangor was not free from doubt, and the political connection
of the "pirates" with a faction hostile to him was assertable as a simple matter
of fact. 284 Amusingly, if not tragically, the Sultan seemed to think that Tunku
Dia Oodin 's role in the trial of the "pirates" was to administer Britishjustice.
Braddell did not mention international law regarding "piracy" in reporting
that a reply was immediately sent to the Sultan of Selangor "pointing out, in
order that there might be no mistake in this report, that the justice was to be
that of the Salangore, not of the British, Government." 285
On 15 February 1874 the tribunal under Tunku Dia Oodin and in the
presence of the two British Commissioners found all eight accused 286 guilty of
"piracy and murder. " One of them was let off on account of his youth, and the
other seven were executed in the Malay fashion by kris in such a way as not to
spill blood. 287
It will come as no surprise to those familiar with the almost automatic
enforcement pattern of public international law that the policies of Governor
Clarke and Thomas Braddell in trying to cover over a political advance by
Great Britain with a display of legal words of art created grave difficulties of
policy. Once it was accepted as a matter of policy that "piracy" included the
political violence of Malay nobles battling for authority within the territories
of the Malay Peninsula, British involvement in peninsular politics could not
be avoided by trying to use "piracy" as a word of art in public international
law that justified British exercise of authority without concommitant
responsibility. The British advance continued and the result was the war
between British-supported factions and even British forces on the one side,
and the old Malay nobility on the other. But the word "piracy" seems to have
258 The Law of Piracy
lost all legal meaning in the correspondence that followed. 288 It was used in
connection with British blockading actions and the destruction of Malay
stockades, but not of trials or judicial executions or, indeed, any actions on
the high seas or elsewhere where British courts might have been argued to
have jurisdiction or public international law to have actually authorized an
interference in the territorial affairs of a "state."
The Limits of the British Imperial Law of Piracy
Introduction. It has been narrated above, how the word "piracy" was
adopted from English vernacular by Parliament and applied to authorize
rewards to British naval personnel in disregard of the legal history of the
concept to which the word had been applied in English courts. It has also
been narrated in some detail how the word was sought to be used in the
Persian Gulf, the Eastern Mediterranean, and in Southeast Asia to justify
British actions inconsistent with the fundamental rules of the international
legal order that make equal subjects of the law of all cohesive political
societies that can maintain their independence, even if only as belligerents.
It has been seen that in each case in which the word was used beyond the
limits the legal order contains to imply any British authority inconsistent
with those fundamental rules, the facts ultimately forced the British either
to withdraw their pretentions or plunged them into the warlike
complications that the use of the word had been expected to avoid. To
conclude the tale of the political use of the word "piracy" by British
authorities, one final incident might help indicate the refusal of the more
sophisticated world to accept British political decisions as proper
statements of law.
It may be recalled that during the American Civil War of 1861-1865 the
Federal authorities of the United States tried to attach the legal results of
"piracy" as they were conceived to flow from international law to the acts
of Confederate-licensed privateers and naval vessels, but that outside of the
courts bound by the Constitution of the United States and legal labels
attached by legislators under that Constitution, the attempt failed; and
even within that legal order, the courts found ways to avoid applying the
legal results of "piracy" to "rebels" in most cases. 289 With one limited
Latin American exception, it was the position of the Law Officers of the
Crown in the 1870s that the word could not properly be attached to foreign
"rebels" unless the country so attaching the word were prepared to become
involved in the political struggle among claimants to authority in a foreign
state. 290 In the affairs of the Malay Peninsula of the 1870s, it has been seen
that the use of the word "piracy" in disregard of these conclusions in fact
brought about the predictable result of British involvement as belligerents,
and ultimately the British conquest of the sultantates of the Malay
Peninsula and the conversion of the word "piracy" in practice to a word of
British 19th Century Practice 259
political argumentation bringing about the very political entanglements it
had been intended through legal argumentation to avoid.
Nonetheless, in 1877 there was an incident in which the British Law
Officers of the Crown attempted to use the word "piracy" as a legal word
of art to justify British military action, and that incident has been so often
cited and misunderstood that it must be examined in a little detail to set it in
proper perspective. 291
The Huascar Incident. On 6 May 1877 the crew of the Peruvian warship
Huascar mutinied an sailed out of the Peruvian port of Callao, shortly
afterwards receiving on board Don Nicolas Pierola as "President of Peru"
in disregard of the existing Peruvian constitution. 292 The very next day, 7
May 1877, the Peruvian Charge d'Affaires in Chile, Senor Zegarra, sent a
note to the Chilean Minister of Foreign Affairs, Senor Alfonso, implicitly
calling on Chile to seize the Huascar as a "pirate" ship. 293 The position of the
constitutional Government of Peru was publicly announced a day later, on 8
May 1877, when a decree was issued by the President, M.J. Prado,
countersigned by P. Bustamente, the Peruvian Minister of War and Navy,
declaring that the Republic of Peru "is not responsible for the acts of the
rebels" and authorizing under the constitutional law of Peru "the capture
of the Huascar," with recompense to those who help bring the vessel back to
the authority of the Government. The word "pirate" is not used. 294
On 10 and 11 May, the Huascar detained two British ships, demanding
mail and dispatches; but the boarding party peacefully left in both cases
when the demand was refused. A cargo of coal was divided, the Huascar
taking a portion alleged to belong to Peruvian owners but shipped under
British control, and two Britons, including a British engineer, were taken
on board the Huascar to serve professionally, but whether voluntarily or not
is not clear. It thus became legally very important whether the Huascar
were classified as entitled to exercise belligerent rights (under which
neutral vessels could be detained and contraband seized), 295 or not. If the
Pierola people were "rebels" exercising "belligerent rights" against the
British, who would then be "neutrals," the question of whether coal in
these circumstances was "contraband of war" would have to be resolved by
diplomatic discussion; British political action would be restricted to
defending British neutral interests. If, on the other hand, the Pierola forces
were regarded as mere Peruvian criminals, mutineers and thieves of
Peruvian property, then British rights to defend British property from
takings unauthorized by international law would seem to have been beyond
the range of argument, and Pierola having no "standing" within the
international legal order to discuss the matter, British self-help to recover
the property, and perhaps political cooperation with the established
Government of Peru to apprehend the Peruvian "criminals," would seem
to have been justified. Finally, if the Pierola people were classified as
260 The Law of Piracy
"pirates," by "naturalist" logic the British could chase them down and hang
them. By basically conservative "positivist" traditions the British Govern-
ment itself, as the legal representative of the world order, basing standing on
the injury to British nationals (if there were such injury), could apply British
municipal criminal law within the jurisdiction of British Admiralty courts to
the "pirates," if British municipal law made them such. Their apparent lack
of animo furandi would make the application of British law doubtful. On the
other hand, the "naturalist" tradition might have been interpreted to allow
summary justice to be rendered by the Royal Navy to those classified as
"outlaws," people beyond the protection of the law's classification system,
regardless of "standing."
The first British opinion was uttered by Rear-Admiral A.F.R. de Horsey,
Commander-in-Chief of Her Britannic Majesty's Naval Forces in the Pacific
Ocean, who sent a message to the "Commander of the Huascar" on 16 May
1877. He prefaced himself with the language of neutrality, taking basically
the middle view of Peruvian criminality, but hinting that he might attach the
legal consequences of the "piracy" view, while avoiding use of the word:
It becomes my duty to inform you that, notwithstanding my desire to preserve a strict
neutrality in all internal dissensions in Peru, any boarding of, or other interference with
British subjects or property by a revolutionary ship owing allegiance to no recognized
or established government, cannot be tolerated, and that any acts of the kind performed
by the Huascar will therefore necessitate my taking possession of that ship, and delivering
her over to lawful authority. 296
The next day, 17 May 1877, the Huascar entered a Chilean port and Zegarra,
on instructions from Lima, again formally demanded that Chile deliver the
ship to the Peruvian legation. In the Peruvian view, Chilean refusal to seize
the Huascar would be "mixing in the civil strife of other countries. " Zegarra 's
note did not mention "piracy" and denied the applicability of the law of war
to the situation, thus denying any obligation in Chile to observe "neutrality":
[T]here was no civil war in Peru; the case was purely one of mutiny," he
wrote; thus, any hospitality shown to the Huascar would violate "the rights of
nations," presumably Peru's rights to property in a Peruvian vessel. 297
Senor Alfonso responded for Chile the next day, ignoring Zegarra 's
current position and seeming to regard the legal situation as involving either
"piracy" or "belligerency" with no intermediate classification possible. In
that context, he absolutely denied Zegarra's arguments often days before, 7
May 1877, and concluded that Chile should, and would, conform to the
behavior that the international law of neutrality would require:
The Charge d'Affaires had stated to him that the ship should be treated as a pirate, but
such an assertion was opposed to the most elementary principles of international laws;
on the contrary it appeared that the mutiny had a political object ... It was clear the
British 19th Century Practice 261
vessel was not a pirate, and the Government considered they had no reason to engage
their naval forces in an encounter not required by the dignity or interests of Chile. . . .
[N]o men or arms could be allowed to be embarked, nor any coal, and all
communication with her would be cut off. The provisions and water necessary for the
use of the crew alone would be granted. She was ordered not to remain longer than 24
hours in Chilean waters. 298
Zegarra replied in writing on 22 May 1877:
Your Excellency maintains that the Huascar is not a pirate, and that there was no cause to
fear she would interfere with Chilean commerce, and, therefore, that Chile had no right
to assume a hostile attitude towards that vessel. The reasoning of your Excellency points
to a simple insinuation contained in my letter of the 7th May, in which my first demand
was put forward. ... It was very natural that, finding no other term for an armed vessel
which floated on the high seas, subject to the passions of its crew, who recognized no
responsibility, and who had committed a grave crime [mutiny against the law of Peru?],
that I should have attributed to her a piratical character; but in my second letter I did not
expressly and exclusively base my demand on this circumstance; yet, if a vessel under
such conditions is not a pirate, I confess I do not know what to term her; she navigates
without a commission from any Government, acknowledges no territorial authority,
and, to establish more precisely her position, has detained on the high sea a commercial
packet [the first British vessel], forcibly obliging the delivery of the correspondence on
board. 299 If such a vessel is not a pirate, at the least she has placed herself completely
outside international right; the flag she flies does not belong to her. 300
There seems to have been no formal reply to this letter from the Chilean
Foreign Minister and other actions to be discussed below made the
correspondence moot. But the legal point must have disturbed important
people both in Chile and in Peru. There was a debate in the Chilean
Chamber of Deputies in which Alfonso 's position, that the Huascar was not
properly classifiable as a "pirate" and that any Chilean action other than
strict "neutrality" would inject Chile illegally into the internal affairs of
Peru, seems to have carried the day, but with significant opposition. 301 The
most significant change in position came from Peru, where the Foreign
Minister, J.C. Julio Rospigliosi, ultimately concluded that Zegarra had
been wrong; that there never was any "piracy" involved and that Chilean
action to take sides in a Peruvian political struggle would have indeed been
improper:
In view of the correspondence of our Charge d'Affaires ad interim in the Republic of
Chile, and considering that on the mutiny of the Huascar taking place the Government
naturally foresaw she would proceed to that Republic, in whose waters our squadron
could not seize her; . . . our Charge d'Affaires at Santiago was ordered to ask for the
detention and delivery of the revolted vessel; that this order did not entail, and it was
never the intention of the Government that it should entail, the intervention of Chile in
our domestic questions.
For this reason, and out of respect for the feeling of the nation, and notwithstanding the
Government feel that the fault committed by our Charge d'Affaires is due to an excess
of zeal in order the better to merit the confidence reposed in him, his proceedings are
disapproved and his protest to the Chilean Government declared null and void. 302
262 The Law of Piracy
J.R. Graham, the British Charge d'Affaires in Lima, apparently misunder-
stood the import in law of this Peruvian withdrawal from an untenable legal
position, and reported back to Lord Derby that the disapproval ran merely to
the "form in which" Zegarra had demanded the return of the Huascar, and
was an attempt "to make a victim" of him. 303 It was not the subject of analysis
by Graham or Drummond-Hay and seems not to have been discussed openly
in any of the surviving correspondence.
It is perhaps significant that Alfonso's position was that there was no other
classification legally possible than "piracy," which he rejected because the
motivation of the crew of the Huascar was essentially political or there was an
objective "belligerency" requiring Chile to act as a "neutral" in the internal
struggle in Peru. Julio Rospigliosi's position did not concede "belligerency."
While apparently agreeing with Alfonso about the impropriety in law of
attaching the word "piracy" to the politically motivated rebels, he seems to
have regarded the matter legally as one of Peruvian law enforcement in
which Chile was not bound to the international law regarding "neutrality,"
but to the law of peace forbidding interference in the internal concerns of
other states. Under that law, the Chilean obligation would have been simply
to return the "stolen" property, but not necessarily to extradite or try the
violators of Peruvian law, since Peruvian law does not apply in Chile and any
Chilean attempt to apply Chilean law to property rights in the Huascar would
have been an intrusion into exclusively Peruvian legal interests. Zegarra,
rejected by both the Chilean and Peruvian governments, seems to have agreed
with Alfonso that there was no Peruvian "crime" involved, but only
"piracy" or "belligerency," and that Chilean recognition of "belligerency"
would give a status to Peruvian rebels that they did not deserve, thus affecting
Peruvian politics and intervening in Peruvian domestic affairs. In his opinion,
apparently, the only remaining classification was "piracy," which would
require Chilean cooperation in suppressing the "rebellion." It is enough to
say that both Governments involved rejected that view as wrong in law.
It would thus appear that while the Governments of Chile and Peru
disagreed as to the proper legal classification to be given to the Huascar,
belligerent rebels requiring Chilean neutrality or Peruvian criminals of no
legal concern at all to Chile but to be denied a base of operations there and
Peruvian property in Chile to be returned to the Peruvian authorities, they
agreed that the international law regarding "piracy," if there were any such
law, was not applicable. They also agreed that whatever the rationale for
applying it, the fundamental international legal principle must be maintained
that no state is authorized to meddle in the affairs of another, even the
criminal law enforcement of that other, without either an invitation or some
other basis in the international legal order for the action. From the Chilean
note, it appears that Chile thought such a basis might arise if the Huascar
attacked Chilean shipping, but that the mere arrival of the Huascar in Chilean
British 19th Century Practice 263
waters was not enough. Peru argued that Chile was somehow legally bound
to accept Peruvian official statements regarding Peruvian property rights in
the vessel flying the Peruvian flag, but Chile rejected that argument and Peru
did not press it further. Ultimately, Chilean abstention as if applying the
international law of neutrality in a belligerency situation was apparently
deemed acceptable to all concerned except the Peruvian subordinate official,
Zegarra, who was reprimanded for pressing his view too loudly.
Meantime, on 29 May 1877, the Shah and the Amethyst, British warships
under Rear-Admiral de Horsey, had engaged the Huascar actually within
Peruvian waters. Expressing considerable admiration for the seamanship
exhibited by the Huascar, "steaming about 11 knots, and . . . always contriving
to keep her turret guns pointing on us, except when in their loading position,"
de Horsey found that the Huascar claimed to be operating with "the President
of Peru" (Sr. Pierola) on board therefore properly flying the Peruvian flag.
She escaped at night and in the early morning of 30 May surrendered to the
recognized Peruvian Government's squadron at Iquique. In de Horsey 's view,
explaining his actions to the Secretary of the Admiralty immediately after the
events recited, the Huascar in interfering with British vessels, property and
persons had "committed acts which could not be tolerated." Moreover,
[Hjaving no lawful commission as a ship of war, and owning no allegiance to any State,
and the Peruvian Government having disclaimed all responsibility for her acts, no
reclamation or satisfaction could be obtained except from that ship herself.
Going further into polemics, he argued:
That the status of the Huascar, previous to action with [my fleet], was, if not that of a
pirate, at least that of a rebel ship having committed piratical acts. . . . [And] that the
status of the Huascar, after refusing to yield to my lawful authority, and after engaging
Her Majesty's ships, was that of a pirate.
He concluded:
That I trust the lesson that has been taught to offenders against international law will
prove beneficial to British interests for many years to come. That I have carefully
abstained from any interference with the interests of the Peruvian Government, or those
of the persons in armed rebellion against that Government; my action in respect to the
Huascar having been entirely for British interests. 304
In his further defense about ten days later, de Horsey wrote to the
Secretary to the British Admiralty that the fuss raised in Peru by his action
against a Peruvian rebel in Peruvian waters could be "easily understood by
those who are conversant with the state of politics."
As there are at least three rebels to every loyal man, there is a vast feeling of
disappointment at the practical result of my proceedings in respect to the Huascar having
been the termination of the rebellion. . . . The political cry of the enemies of order is now
that the Peruvian flag has been fired into by British ships, of course omitting to say that
those colours were falsely hoisted by a piratical rebel vessel. 305
264 The Law of Piracy
In fact, it was not merely popular upset that ensued. On 10 June 1877 the
Peruvian Foreign Minister, J.C. Julio Rospigliosi, addressed a circular
communication to all Peruvian diplomatic representatives strongly con-
demning the fact that de Horsey had "opened fire upon the Peruvian ship
within the waters of the . . . port":
The Huascar did not, on account of having refused to recognize the authority of
Government, cease to belong to Peru. And, although the supreme Decree of 8th May
last 306 was issued to bring about her apprehension, foreign ships-of-war were not
thereby entitled to attack her, not only because international law prohibits mixing in the
internal affairs of other states, but also because the reward offered by that Decree could
not refer to the commanders of such ships without grossly offending their personal and
national dignity.
Moreover, Julio Rospigliosi argued:
Let us, however, suppose that the Huascar provoked an attack of Her Britannic Majesty's
ships, such attack could never be permitted to take place in the waters under the
jurisdiction of the Republic without causing a flagrant violation of the immunity of her
territory. 307
The questions of law were referred by the British to the Law Officers of
the Crown, who replied on 21 July 1877 adopting de Horsey 's view but
without using the word "pirate":
Admiral de Horsey was bound to act decisively for the protection of British subjects and
British property, and . . . the proceedings resorted to by him were in law justifiable. 308
This view was debated twice in Parliament on 7 August and 11 August
1877, primarily by Sir William Harcourt, 309 who attacked the Attorney
General, Sir John Holker, 310 both as to the facts and the law. Harcourt pointed
out that the acts of the Huascar hardly seem "piratical" when all that she did
would have been permissible if she were conceded the rights at international
law of a "belligerent." The Huascar indeed stopped two "neutral" (British)
vessels, but did not seize any property or mail, and left after being satisfied of
their neutrality; the property supposedly seized was in fact claimed by a
Peruvian owner as his part of a British shipment and was not clearly British
property; at least one and probably both of the British individuals taken off
one of the vessels seems to have gone voluntarily; etc. Belligerent rights, in his
opinion, flowed from the facts of a political struggle with rival claimants to a
governmental authority in Peru, which was the undoubted situation.
Attorney General Holker argued essentially the same ground previously
argued by Senor Zegarra and rejected by the Governments of both Peru and
Chile, that absent recognition as a "belligerent," all acts under color of
"belligerent rights" were criminal at international law and there was no label
better fitting them than "piracy." 311
One other aspect of the Parliamentary debate is worth mentioning. One of
the supporters of the Government's position that the Huascar was "piratical,"
Sir George Bowyer, quoted in Latin the portion of Justinian's Code referring
British 19th Century Practice 265
to "enemies" being those with whom there is a public war, others being
"praedones et pirata." 312 It does not appear to have been noticed in the debate
that the original language does not refer to "pirata" at all, but "latrones;" 313
that the question was not the relationship between the British and bandits, but
between the British and unrecognized rebels, and whether such "rebels"
could properly be treated as if they were mere "bandits; " that the Roman law
presumed an imperial hegemony which seems inconsistent with the world of
1877 and British limited legal powers in the Pacific coast of Latin America;
that the quotation, thus, presumed an imperial law-making authority and
classification system that was more than the Romans had asserted and was
inconsistent with British views of the world legal order of the time. But it
appears quite likely that Bowyer was expressing a view in Parliament that
seemed to give to political action a legal cover that was convincing to many
British policy-makers.
The proper classification of the Huascar incident was referred back to the
Law Officers of the Crown twice more. On 9 October 1877 they advised Lord
Derby that a British claim against Peru for losses by the British interests that
claimed to own the coal taken by the Huascar would not be justified. The
ground for this opinion was essentially British reliance on the Peruvian
Decree of 8 May 1877 disclaiming responsibility for the acts of the Huascar
which were the basis for de Horsey 's attack. 314 Since the British defense of de
Horsey 's action rested on the need to protect British interests, not on any
reliance on the Peruvian note, this logic is hard to follow. Moreover, it would
have seemed a clearer answer that Peru is not the insurer of foreign shipping
or even foreign property physically within Peru, and, absent any failure of the
Government of Peru to protect foreign property with "due diligence," or to
open her courts in the normal way to do justice, there simply was no basis for
an international claim. Many people are injured by criminals (under Peruvian
or other law) who, when caught, cannot pay for what they stole; there was
certainly no lack of diligence by Peru in trying to end the depredations (if that
is what they were) of the Huascar. It seems likely that Holker was trying to
avoid any implication that the actions of the Huascar might be justifiable under
the law relating to "belligerency," and in his obsession with justifying British
enforcement action without using the word "pirate ' ' and yet without denying
the possibility of using the word, reached for an argument that seemed
pertinent to de Horsey 's action rather than the simpler argument arriving at
the same result without touching on the possible justifications for de Horsey 's
violation of Peruvian territorial waters.
In the second instance, Lord Derby sent to the Law Officers, including
Holker, a draft reply to the formal Peruvian protest and on 7 March 1878 they
approved his use of the word "pirate:"
If a vessel under such conditions is not a pirate, I confess I do not know what to term her;
she navigates without a commission from any Government, acknowledges no territorial
266 The Law of Piracy
authority, and to establish more precisely her position has detained on the high sea a
commercial packet, forcibly compelling the delivery of the correspondence on board; if
such a vessel is not a pirate, at least she has placed herself completely outside
international right; the flag she flies does not belong to her. 315
This language, clearly taken verbatim from Drummond-Hay's translation of
Zegarra's note of 22 May 1877, 316 set forth as a British position the legal
arguments already rejected by Zegarra's own government and by the
government to which it had been addressed, Peru and Chile. There is no
record of further correspondence between Great Britain and Peru on this
matter in the available records. 317
The British position as adopted by Lord Derby seems argumentative and
unconvincing on several grounds. Most obvious is that it does not address
directly one of the two major points made by Peru in Julio Rospigliosi's
protest letter: The violation of Peruvian territorial waters. Even if the label
"pirate" were the proper label to attach to the Huascar, there is no precedent
in diplomatic correspondence for the victim of a territorial incursion
agreeing that the incursion was justifiable in chasing "pirates." The British
had themselves made that assertion and withdrawn from it in the affairs of
Selangor analyzed at such length above. The situation was in fact addressed
directly by the very same Law Officers of the Crown in Disraeli's
Government when, in 1879-1880 the question of the legal right of British
warships to chase Arab "pirates" into Turkish rivers in the Persian Gulf area
was answered in the negative. 318 In that analysis it may be remembered, the
"pirate-hunting" rationale was expressly rejected and another rationale was
found in 1881 based on self-help in performing Turkey's asserted legal
obligation to suppress predation on third country vessels by rebels as well as
by "pirates;" the classification problems were avoided by finding the same
legal results to flow regardless of whether the predators were called
"pirates" or "rebels." In the Huascar case no equivalent failure of Peruvian
local authorities could be alleged to justify British self-help, and the
alternative British rationale of "self-defense," while suggested by Rear-
Admiral de Horsey, also seems a bit strained when it is remembered that the
Huascar was at the time attacked by the British not actually threatening any
legal British interest.
On a somewhat deeper level, the British position stated by Lord Derby
seems to presume a British hegemony at sea, and perhaps even in the internal
affairs of Peru, inconsistent with the equality and independence of states. This
was the point most ardently pressed by Julio Rospigliosi and most persuasive
to Alfonso in Chile. It is a point raised directly in the Parliamentary debate of
11 August 1877 when Sir William Harcourt pressed the Attorney General Sir
John Holker as to whether, if the crew of the Huascar were captured by the
British force, the men would be prosecuted in England as "pirates." Holker
had replied: "In strictness they were pirates, and might have been treated as
British 19th Century Practice 267
such, but it is one thing to assert that they had been guilty of acts of piracy, and
another to advise that they shall be tried for their lives and hanged at
Newgate." 319 This looks like the "naturalist" assertions of the Americans
Story and Wheaton, preserving a legal theory by asserting to rest on legal
discretion a legal position whose application in practice is consistently
rejected. In fact, the legal situation appears to have been identical with that
which gave the "naturalist" British judges so much trouble during the
American Civil War of 1861-1865 and resulted in the refusal to extradite
Tivnan and his friends as "pirates," while not trying them for the very
"piracy" that was alleged to have been the true crime committed excusing
them from the application of the extradition treaty. 320 It seems to treat the
concept of "piracy" as a single legal notion with two different descriptions
and sets of legal results, accepting the label as proper for all interfering with
neutral shipping at sea who are not "belligerents," whatever their
motivation, while giving the legal results of hanging as criminals only to those
exhibiting the animum furandi and releasing the others. Viewed this way,
attaching the label seems to be a step in the municipal criminal law process
with regard to those with the animo furandi, and an excuse for political action
against unrecognized "rebels" with regard to those without that animo. But
since political action against foreigners rebelling against the constitutional
authority of a foreign state would seem to be an intervention in the internal
affairs of that state, at least when, as in the Huascar case, only one foreign
state is involved in the rebellion, to use "piracy" as the basis for political
action is in fact to take sides in the internal affairs of that state. So it was
certainly viewed by the constitutional authorities of Peru in the Huascar
incident, and they are the people most likely to have benefited from a British
action in practice. Their objection was not merely a concession to rebellious
and excitable Peruvian opinion, opposed to the British alignment against
Peruvian rebels, but to the notion that such an alignment was "pirate-
hunting" and not an intervention in internal Peruvian affairs.
What distinguishes the case from the general American assertion of
jurisdiction to try stateless "pirates" 321 was that the crew of the Huascar were
in no way "stateless; " the men were Peruvian in their own contemplation and
in that of the Government of Peru and, indeed, of Great Britain. American
courts had, with some difficulty, come to the conclusion that the international
legal order had a gap with regard to stateless persons on the high seas that
could be filled by national assertions of jurisdiction in some cases even in the
absence of direct injury to any legal interest threatened by the foreigners
other than the general legal interest in secure trade by sea. The British
Government was now asserting the existence of a gap in the international
legal order to the extent foreign rebels might try to exercise belligerent rights
against neutral shipping on the high seas, and asserting a legal power, by
withholding "recognition" of "belligerency," to take sides in that foreign
268 The Law of Piracy
struggle without foreign resentments or British legal obligations. That
position was not acceptable to the foreigners involved and might best, then,
be classified a position of British Imperial law rather than a statement of a rule
of international law.
An implication of this mode of thinking in Great Britain is the free citation,
as if applicable, of the Roman law phrases appropriate to the Roman
hegemony as if statements of international law appropriate to British sea
power, and even the paraphrasing of the Latin texts to better suit British
Imperial needs. 322
In the circumstances, it is not surprising that the writer who saw the
greatest precedent value to the Huascar incident went out of his way to
explain that the case was very special, implying sui generis, because "the
insurgents had apparently no organized government even of a provisional
kind" and their actions "exceeded even those rights of interference with
neutral commerce which are accorded to a recognized belligerent." 323 Since
the asserted "President of Peru" was on board of the Huascar at the time of the
incident, and a large part of the Peruvian population in the estimate of de
Horsey, at least, supported him, and since in fact the actions of the Huascar do
not seem to have exceeded what would have been permissable to a belligerent
(indeed, the argument was over whether it was proper even to consider
applying the international law of belligerent rights to the activities of the
vessel), the entire legal structure posited by later publicists on the basis of the
British legal position in the case seems to fall.
At this point, it is possible to argue that the Huascar incident does not
represent even a view of British Imperial law, but instead a simple political
argument put forth by a government that has made an embarrassing mistake,
covering it over with a show of legal words convincing to nobody who was
involved except, perhaps, to Rear-Admiral de Horsey and the assertive and
repudiated agent of the defending Government of Peru in Chile, Charge
d 'Affaires ad interim Zegarra. That the argument has survived seems testimony
to the vigor of "natural law" theorists asserting a view of the international
law relevant to "piracy" that ignores the basic structure of international
society and raises security of sea-borne shipping to the level of the highest
legally protected values of the international order. As applied to an actual
incursion into foreign territory, that view failed shortly after the Huascar
incident might have been interpreted to support it — and it was in fact never
supported by the British in the Huascar correspondence and should have ended
the matter immediately with a British apology to Peru for the violation of
Peruvian territorial waters. As applied in theory to make universal criminals
of "rebels" at the whim of policy of third states, it failed when it was
confessed in Parliament that that legal result is not likely to have flowed; and
in fact it could not have flowed because the legal result would have been the
application of British municipal law, not international law, to the definition
British 19th Century Practice 269
of the crime of "piracy," and the lack of animo furandi would have ended
the chances of a successful prosecution.
In any event, the Huascar did not become a major precedent in
practice. Instead, the concept of "piracy" was narrowed to its non-
political legal limits, and the concept of "belligerency " in the absence of
recognition expanded to include the politically motivated acts of rebels
or other groups committing depredations without the animo furandi.
When Colombia's Minister in Washington argued to Secretary of State
Thomas F. Bayard in 1885 that Colombian rebels ought to be considered
as "pirates" in the light of Lushington's opinion in the Magellan Pirates
case, 324 the American reply was:
[T]hat there can not be paper piracy with international effects and obligations any more
than there can be a. paper blockade of effective character. 325 In the one case as in the other
no force or effect can be communicated by a municipal decree which is not inherent in
the case itself, and I felt constrained to announce to you that this Government could not
deem itself bound in any manner by such a decree. 326
This limit to the utility of the word "pirate" to describe unrecognized rebels
Bayard traced in earlier correspondence back to the natural law underpin-
nings of the legal order and the inevitability of wise policy being based on
facts rather than on wishes:
In the late civil war, the United States at an early period of the struggle surrendered the
position that those manning the Confederate cruisers were pirates under international
law. The United States of Colombia can not, sooner or later, do otherwise than accept
the same view. 327
Thus the United States had solved the problem the British had tried to solve
by labeling as "pirates" all otherwise not classifiable as "belligerents," in
much the same way as the British; by avoiding the entire labeling process as
too colored by political wishes to reflect a true legal evaluation. Instead of
affixing any label at all to "justify" the recapture of American property taken
by unrecognized rebels, Bayard informed the Colombian Minister, Becerra:
The commanders of the naval vessels of the United States on the Colombian coast have,
however, been told that if conclusive proof be shown that any vessels belonging to
citizens of the United States have been unlawfully taken from them, 328 the recovery of
such property by the owners, or by others acting in their behalf, to the end of restoration
to their legitimate control, is warrantable. Such a right is inherent, depending wholly
upon the circumstances of the case, and can not be derived from or limited by any
municipal decree of the Colombian Government. 329
Since the American position rested on legal analysis in which the position of all
states as legal equals was not only unquestioned, but was even the foundation
stone of the logic holding American interpretations of the facts for purposes of
attaching legal labels to be equally weighty with Colombian interpretations, and
more weighty for the purposes of American policy, 330 the American position was
squarely inconsistent with the implications of the British argument of 1877
seeking to classify the Huascar a pirate vessel and to derive from that classification
270 The Law of Piracy
a general license to chase her down in any other state's territory. It was for
each state to decide for itself whether any vessel could properly be classified
"piratical," and no one state's autointerpretation was binding on any other.
The British autointerpretation could not be binding on Peru. Thus, even if a
later Peruvian agreement as to the propriety of the British classification could
end the correspondence between those two powers, by the American
rationale the British would have acted improperly by invading Peruvian
waters before the Peruvian position was known.
Moreover, the American position taken for itself was based on narrower
legal reasoning about rules of law within the system as well as rules of the
system itself. This was noted above. 331 Where the British rationale
developed in internal correspondence by the Law Officers of the Crown in
1879-1881 focused on the extension to the international realm of the
principles of municipal or natural law that permit a person threatened with
injury by the default of another to perform that other's duty for him, the
American rationale was a more direct self-help rationale, more easily
limited to direct recaption. The British rationale for using the law of
"piracy" as a basis for asserting an obligation in third states to suppress
interference with shipping generally was a way of justifying British
policing of the seas generally. The American rationale was more narrow,
justifying only the recapture of American vessels and goods, not the
punishment as if a matter of criminal law of the alleged "pirates. " But then,
the British attempt to use their legal position to justify "punishment" of
"pirates" as if criminals when in fact merely interfering with shipping with
or without any license or animo furandi, uniformly failed to avoid the very
wars that the rationale was designed to make unnecessary. And it was
ultimately the British who were forced to retreat into action rationalizable
on the American rationale only, although never dropping their assertions of
wider authority under international law, just as the naturalist jurists of the
United States after Story never dropped their rationales although confined
by Supreme Court precedents and the practical considerations of real life to
much narrower actions.
Conclusions
It might be concluded then, that by the last years of the 19th century as
seen by the United States and Great Britain, there were at least three quite
different legal uses of the word "piracy," with a deep split among
statesmen and judges as to how best to formulate the underlying
conceptions, if any, in legal terms. The jurisprudential split lay between
"naturalists" and "positivists" and has its roots in the 16th century, if not,
indeed, in the very structure of human legal thought tracing back at least to
Greek and Roman times. It is the split between those who see the law as
British 19th Century Practice 271
containing immutable principles and those who see the law as a matter of
political negotiation. While one or other of these basic approaches appears
to have been dominant at different times, there is no time and no country
whose practice has been discussed above not having ample evidence of both
strains of thought co-existing uneasily. With regard to both approaches,
reality has a way of inevitably breaking through the theoretical structure to
prevent the establishment as law of idiosyncratic views based either on
non-generalizable moral perceptions like those of Story, or policy-oriented
views demanding classifications that favor one party at the expense of
objectivity like the American Federal Government's view of the 1861-1865
Confederate raiders or the British view of the legal powers of Malay
Rajahs.
Assuming the two irreconcilable basic approaches, there remain the
three quite different conceptions of "piracy": (1) "Piracy" as the raiding,
taxing, territorial-jurisdiction concept of control over commerce that
restricts the use of the seas as an avenue of commerce. This use of the term
traces back at least to Roman times and reappears as a legal rationale for
political action to establish a rule of freedom of commerce. This kind of
"piracy" was successfully suppressed by military action in the seas beyond
the claimed exclusive reach of a single sovereign. Suppressive military
action led to war when extended to territorial waters (even when claimed
in distant seas, like the Spanish and Portuguese, 16th and 17th century
British, and consistent Barbary states claims) until British naval dominance
made the entire law of the sea a matter of British Imperial law and
contained rules of freedom of navigation as an aspect of that municipal law,
more or less acquiesced in by maritime states for their own reasons and for a
relatively short period in the 19th century. Even then, it appeared to work
best when the assertions of law allowed for limitations on freedom of
navigation on the high seas as an aspect of belligerency, provided that the
rights of "belligerency" were conceded to unrecognized political
authorities, as in the Eastern Mediterranean of the 1820s.
(2) "Piracy" as a concept of municipal law involving merely the exercise
of such jurisdiction by municipal courts as public international law allows
to states within the legal order. This use of the term traces back to the
adoption of the Latin word into English Admiralty law by the civilians of
the 16th century as a word of art to attach to some property adjudications
and "criminal" cases within the jurisdiction of Admiralty courts as distinct
from the Common Law courts of England. The attempt to spread the
concept to make an "international crime" of "piracy" seems to have been
based on attempts by some statesmen to apply their municipal law to the
acts of foreigners abroad. The leading substantive cases all seem to turn on
circumstances in which the municipal law jurisdiction of England had a
firm basis in the nationality of the actor, his co-conspirators or his victims;
272 The Law of Piracy
attempts to apply the law still further, to the acts of foreigners against other
foreigners, while asserted from time to time, led for practical reasons in the
real world to very few cases and the assertion of "natural law" theories that
could not be meshed with reality or the equality of states and the territorial
bases of sovereignty implicit in the general international legal order from
earliest days. The furthest reach of national criminal jurisdiction ever to
get through the courts under this conception of "piracy" appears to have
been an American case involving stateless defendants, where practical
problems of producing evidence made the exercise of jurisdiction by the
state of the victim inappropriate and no other state had any basis for
jurisdiction in the traditions of the international legal order. From this
point of view, the evidence does not support any assertion of "universal
jurisdiction" over "piracy" as a matter of international law, but it does
support "passive personality," i.e., jurisdiction based on the nationality of
the victim of the "piracy," and a universal jurisdiction over stateless
defendants, for whom the classical international legal order provides no
spokesman anyhow to object on a diplomatic level.
(3) Between the conception of "piracy " as the label for states and persons
conceived to be outside the international legal order, or at perpetual war
with states within the legal order ("hostes humani generis") by virtue of their
assertions of territorial or other jurisdiction interfering with trade at least
at sea, and the conception of "piracy" as the label for non-state individuals
and small groups violating the criminal laws of established states with
jurisdiction over the offense based on the place of occurrence or the
nationality of the actors or victims or some other basis for jurisdiction
acceptable to other states as consistent with the international legal order,
there seems to have been a third conception. That is "piracy" as a concept
of public international law applicable to political actors whose degree of
organization and ability to conform to the laws of war are insufficient in
the opinions of states to justify the classification and legal results of
"belligerency," but whose actions cannot properly be classified as
"piracy" in the common law countries' municipal Admiralty law sense
because of the lack otanimofurandi. Classifying the law applied by municipal
Admiralty courts as a branch of public international law, derived from that
branch of the "law of nations" that was considered to be the "natural law"
common to all countries thus reflecting underlying conceptions of justice
common to all mankind, it was possible to label the internal enemies of the
constitution of any particular country in the Admiralty courts of that
country, "pirates" instead of mere "rebels" or "traitors." It was possible
further to argue that, the classifications of any municipal Admiralty court
being mere reflections of universal law, such people were "pirates" in all
countries and "hostes humani generis" in the sense of criminals under the
public international law administered by the municipal Admiralty courts of
British 19th Century Practice 273
all nations. 332 This line of logic failed when tried by the United States
Federal authorities during the American Civil War of 1861-1865, and failed
when Colombia tried it in 1885. Instead, the word "pirate" retained a
popular usage occasionally reflected in Imperial policy, as by Sir Andrew
Clarke in the Malay Peninsula in 1874, with results that make it clear that
that usage was political and not effective as a matter of law. Where the
threshold for the classification "belligerent" was lowered to the point that
any political violence could be accorded "belligerent rights" even in the
absence of a degree of organization and territorial control normally
considered legally necessary before the classification could be properly
applied, as with regard to the Greek insurgency of the 1820s, stronger tools
for persuasion were placed in the hands of policy makers of third countries
maintaining "neutrality" in those struggles, and the system worked.
Governments defending their national constitutions against rebels
remained free to call the rebels "pirates" for internal political purposes,
but usually found that a return to peace and stability was made easier by
granting "belligerent" status to the rebels, even if only as a "concession"
preserving the form of a municipal legal order under which the established
government was the only one with legal powers and the rebels could also be
classified as "criminals." 333 In these circumstances, it is not surprising that
the word "piracy," while remaining in the vernacular and in the
vocabulary of some scholars removed from policy responsibility, dropped
out of international currency as a legal word of art in this third sense by the
end of the nineteenth century. It was revived during the twentieth century
in connection with violations of the laws and customs of war by
acknowledged belligerents, in particular applied to submarine warfare
during and after the World War of 1914-1918, but that revival must be
discussed below.
It is with this analysis of the third concept of "piracy," the attempt that
failed to use the word as a legal pejorative applied to rebels whom
statesmen find it in their parochial interest not to call "belligerents;" to
draw on a word with municipal criminal law connotations that seem to
reflect some universal, natural-law idea that in other areas has been
dropped from public international law and relegated to conflict of laws
theory; to bring in overtones of an ancient word with connotations of
outlawry and imperial justifications reminiscent of the glories of Rome and
the rationales for Roman suppression of those opposing universal trade
under Roman hegemony and law; that we end this analysis of the classical
international law of piracy.
It adds a touch of charm to our appreciation of W.S. Gilbert, who, in
seeking a legal basis for discharging the "Pirates of Penzance" from their
legal responsibility, found in his comic opera of 1879 the perfect
exculpation; one that would have applied to Malays as well:
274 The Law of Piracy
They are no members of the common throng;
They are all noble-men who have gone wrong.
A final word on the place of international law in the British policy
decisions seems appropriate in this place. It has been seen how the word
"piracy" was used from the early 18th century on to justify policy, and it
can be argued that that use represented a conviction of justice and law that
made policy wise, or at least is evidence that the statesmen believed their
policy conformed to some accepted set of values. But it has also been seen
that there was a persistent jurisprudential struggle. On the one side were
"positivists," who conceived of the rules of law as those rules agreed on
either expressly, as by treaty, or impliedly, as by behavior which is justified
in diplomatic or other correspondence as compelled or at least permitted by
principle; they defined "law" as the set of rules adopted and promulgated
by a legislator (in the case of public international law, by the community of
"states"). Under that model, once the rule is adopted, morality drops out of
the picture, and the law is the law because it is the law regardless of its
moral and political underpinnings. On the other side were "naturalists,"
who conceived of the rules of law as those rules discoverable by reason
according to elaborate patterns analyzed by deep thinkers from the days of
Plato, Aristotle and Cicero; to them the law exists whether or not adopted
in practice or by treaty, and that "true law" is morally higher and "more
binding" than the "positive law." There were times when "positivists"
dominated the councils of states and times when "naturalists" dominated
those councils. There were times when neither approach dominated, or
when each dominated depending on which individuals and which forums
were involved.
As a practical matter, taking either a "positivist" or a "naturalist"
approach, a competent lawyer can construct a model of reality using legal
words that will seem to justify whatever a statesmen thinks is in the
political interest of his state. But under "naturalist" theory, that
justification is merely an argument with which others, believing themselves
more attuned to the eternal rules of morality and "true law," can disagree.
Under "positivist" theory, no state has the legal power to determine rules
of international law, but only the power to interpret those rules for itself
and try to convince others that that interpretation is correct. The decisions
as to "true law," or the "determinations" of positive law, are made not by
the self-serving pleadings of parties, but by detached scholars, by the
reactions of other statesmen and publicists, and by history. Thus, for
present purposes, the fact that some British judges had articulated a place
for "piracy" in the international legal order that was felt to be persuasive
to some British statesmen and some British Admirals is important, but not
determinative of the law. The evidence of the disagreement of other statesmen,
the unanticipated complexities within the British and international legal
British 19th Century Practice 275
orders created by "naturalist" assertions of Dr. Lushington and others in
the cases before them, and the military and political problems created by
Admirals and local governors acting under their perceptions of what is
justifiable internationally in response to what they called a "piracy," all
indicate that the naturalist perceptions of the last half of the 19th century
were increasingly ill-attuned to both eternal values and positive
expediency; that the American positivist position taken by Marshall and
ultimately by Story in apparent disregard of the model in the hypothetical
mind of the Congress in 1790, 1819 and 1820, was founded on a sounder
comprehension of the actual operation of the international legal order than
the naturalists could accept.
Since each person must make up his own mind as to the most useful model
of reality he constructs in his own mind to understand and possibly
influence events, and the fundamental differences between naturalist
models and positivist models seem to survive regardless of argument or
experience, it is surely wisest for present purposes to end this small
discursus here. But it might be helpful to bear in mind that the
jurisprudential movement of the 19th century towards codification of the
law, reaching a peak with regard to public international law in the first
twenty years of the 20th century and surviving with some force even today,
in the last years of that century, cannot ignore the jurisprudential
disagreements. Codification is either a process of translating "natural law"
into words, or of legislating. If the latter, morality, history and current
policy are all legitimate parts of the law-making process, as they are in
municipal legislation; if the former, a handful of incidents showing the
application of morality in practice suffices to define a model which is then
vigorously pressed with all inconsistencies explained away as minor
exceptions or factual deviations from the true norm. The arguments among
lawyers and policy-makers about these matters are endless. Here we will
address those pertinent to the law of "piracy," and how the "victory" for
the most articulate naturalist model builders resulted in a meaningless
codification of no law.
If the readers of this study see analogies to the attempt from 1973 to 1982
to codify the law of the sea, I have no objection.
Notes
1. To European statesmen of the nineteenth century and, indeed, well into the twentieth century,
European formulations of international law as applied among European states were conceived as
universally applicable regardless of the exclusion of political organizations of Africa and Asia (and parts of
276 The Law of Piracy
Europe) from the processes by which that law was expressed; i.e., the disregard of their diplomatic
statements and practices as persuasive within the legal order. See, e.g., the reference to there having been
"no claim by any Power other than Denmark to the sovereignty over Greenland" prior to 1921, and the
Viking settlements there having been in "unsettled countries," "a terra nullius" when the evidence shows
those settlements to have been "established in a distant country and its inhabitants massacred by the
aboriginal population." Legal Status of Eastern Greenland (1933), P. C.I.J. Ser. A/B, No. 53, p. 47. One
might ask, Distant from what? Who were the "aboriginal population" sufficiently organized to
"massacre" the Vikings who scourged parts of Northern Europe? In the dispute between Norway and
Denmark, the possibility that the Eskimo population might have been "sovereign" in its ancestral territory
was not considered.
2. Cf. 2(4) Henry Burney, The Burney Papers (Bangkok, 1910-1914) passim, esp. p. 134 where Burney, in
a report dated 2 December 1826 to the highest British officials in India following his successful conclusion
of a major treaty with Thailand, summarized part of the history of British activities in Southeast Asia as
accepting the right of Malay Sultans to cede territory while steadfastly refusing to interfere in their
relations with Siam or in their internal politics, with some notable exceptions. In discussing the origins in
1786 of British title to Penang Island, off the coast of the Malay Sultantate of Kedah, Burney conceded the
Thai argument that Kedah was politically and legally subordinate to Thailand at the moment a treaty of
cession was concluded, but argued that regardless of his other obligations to Thailand, the "Rajah of
Queda" apparently had the authority to cede territory. Id., 171. This patently self-serving British position
was, of course, unpersuasive to the Thai and the nobility of Kedah. An analysis of the entire transaction,
and other related transactions, is in Rubin, International Personality of the Malay Peninsula (1974) passim., esp. p.
220-221.
3. H. Grotius, De lure Belli ac Pads (1625, 1646) (CECIL 1925), Book II, c. iii, para. 13(2), quoted in text
at note 1-128 above.
4. Cf. Longford, Wellington; The Years of the Sword 469 (Panther Books 1971): "Metternich's original idea
. . . included the forlorn hope of Britannia climbing down a step or two from her maritime hegemony
which she loftily called the Freedom of the Seas."
5. See text at note III-207 above, quotation from The Hercules [1819] 165 Eng. Rep. 1511, 1518-1519.
6. The statutes are cited at note III-138. The lack of legal consequence in international law is noted in
the text above notes III-138 to III-140 and note III-140 itself.
7. 2 Moore, Digest 1076.
8. See note III-143 above.
9. The most often cited of these decisions and the most directly in point is the decision by Sir William
Scott, Lord Stowell, in The Helena, 4 C. Rob. 4 (1801). In that case, a purchaser of a British vessel captured
by an Algerine commissioner as prize and sold in an Algerine market was given title valid against the
original British owner. The taking might have been illegal, but Sir William Scott held that Algiers had the
power of a state to apply its legal forms and transfer title; that complaints about denials of justice in
applying those forms should be pursued at the discretion of the Crown through diplomatic channels, as
would have been the case between European powers in identical circumstances. His reasoning is not
policy-oriented as Gentili's had been two hundred years before in identical fact situations, but
"naturalist. "The legal classifications seemed to Scott to flow from the facts directly. He thus adopted the
conclusion of the Paris Court impliedly criticized by Grotius by 1632, applying what seems basically
Grotian reasoning. See text at note 1-125 above, quoting Grotius, De lure Belli ac Pads (1625, 1646), Book III,
ch. ix para. 19(2).
10. 567. Wolff, Jus Gentium Methodo Scientifica Pertractatum (1747, 1764) (Joseph H. Drake, transl.) (CECIL
1934)) sec. 124. The Drake translation used here is in Vol. II p. 70. In the original: "si qua Gens velit aliam ah
usu navigandi &piscandi in mari vasto arcere, haecjustam belli causam hahet." Id., Vol I, p. 46. See also note 11-138
above. As to the proper translation of justum, "just" or "legal," see note 1-46 above.
1 1 . Vattel, Le Droit des Gens (1758) (Charles G. Fenwick, transl.) (CECIL 1916) Book I, sec. 282 in Vol. Ill
p. 106. The original is in Vol. I, p. 245: " Le droit de naviger & de pecher en plein meretant done un droit commun a tous
les hommes; la Nation qui entreprend d'exclure une autre de cet avantage, lui fait injure & lui donne un juste sujet de
Guerre ..." See also note 11-137 above. On the popularity of citations to Vattel in this period, see the
statistics prepared by Professor Edwin D. Dickinson on the basis of American cases 1789-1820 set out in
Nussbaum,yl Condse History of the Law of Nations (rev'd ed. 1954) 162, showing court quotations: Grotius-2,
Pufendorf-8, Bynkershoek-2, Vattel-22; court citations: Grotius-11, Pufendorf-4, Bynkershoek-16,
Vattel-38; citations in pleadings: Grotius-16, Pufendorf-9, Bynkershoek-25, Vattel-92. Without
attempting an equivalent statistical study of diplomatic correspondence, it is my personal impression based
on the research for this work that the breakdown for the period 1777-1840 would be about the same; if
anything more Vattel and less Pufendorf and Bynkershoek.
12. The point can be seen most clearly by skipping over one and a half centuries of terminology, from
Grotius to Vattel, to see the change as a quantum leap. In Vattel's original French the European inaction
against the Barbary states is described as follows:
British 19th Century Practice 277
Les Nations Chr'etiennes ne seroient pas moins fondees a se r'eunir contre les R'epubliques Barbaresques,
pour detruire ces repaires d'ecumeurs de mer, chez qui V amour du pillage, ou la crainte d'un juste chatiment
sont les seules regies de la paix ou de la guerre. Mais les Corsaires ont la prudence de respecter ceux qui
seroient le plus en etat de les chastier; & les Nations qui savent se conserve libres les routes d'un ricne
commerce, ne sont point fachees que ces routes demeurent fermees pour les autres.
Vattel, op. cit., Book II, Ch. VI, Sec. 78 (Vol. I, p. 313). In the Fenwick translation of 1916:
Christian Nations would have an equal right to unite against the Barbary States to destroy
the haunts of those pirates to whom the love of pillage and the fear of just chastisement are
the only rules of peace and war. But the corsairs are prudent enough not to trouble those
who are in a position to punish their attacks; and the Nations which are able to keep the
routes of a rich commerce open to themselves are not sorry to see them closed to other
Nations. Id, Vol. II, p. 137.
The phrase translated as "pirates" by Fenwick is "'ecumeurs de mer." The word ' < ecumeurs ,, derives from the
same Indogermanic route as the English words "skim" and "scum" and the German "Scnaum" ("foam"). It
is picturesque as applied to the swift-boated licensees of the Barbary coast scudding afore the breeze for
privateers' profit, but it is not a legal word of art and does not carry the weight of classical tradition or
municipal law overtones of the word "pirate" in French or English. Vattel 's perception of the motivation
of Barbary officials and commissioners of his time seems to have had no basis but European prejudice;
indeed, the second of the two quoted sentences makes it clear that the Christian nations of the time in their
practices were no less avaricious and disdainful of hypothesized natural rights of commerce than the
Barbary states as perceived by Vattel.
13. Note III-110 above.
14. This rationale can be traced back to Aristotle, Nicomachean Ethics 1134b, 18 sq. Although Aristotle did
speak to natural justice in this famous passage, comparing it to the flame which burns both in Greece and in
Persia (sec. 2), he did not draw the conclusion, for which he is often cited, that "justice" is in any particular
the same in all countries and that "law," to be "law," must be "just." Nor did he address standing at all.
But the roots of the English Common Law distinction between mala in se and mala prohibita (evils of
themselves, and evils because so declared) lie in the same conception and, where the English courts had
standing, were applied to foreigners, even when they had the privileges of Ambassadors. See Palachie's
Case, 1 Rolle 175 (1615), English version in R. v. March, 3 Bulstr. 27, 3 BILC 767. Both English and Law
French texts are quoted at note 1-197 above. The English Common Law was changed by statute, 7 Anne c.
12 (1708).
15. Note III-110 above.
16. U.S. v. Palmer et al., 16 U.S. (3 Wheaton) 610 (1818); U.S. v. Klintock, 18 U.S. (5 Wheation) 144
(1820). These cases are discussed in the text at notes III— 75 sq. above.
17. R. Zouche, Iuris et Indiciis Fecialis (1650) (CECIL 1911) 1. See text at note 11-134 above.
18. The form had remained more or less unchanged since the days of Captain Kidd. See excerpts of
representative commissions in the text at notes 11-93 and 11-94 above quoting from R. v. Kidd and others, 14
How. St. Tr. 123(1701). The law of belligerent capture at sea and Prize courts' legal power to change title
to enemy goods and to neutral goods denominated "contraband," even in the absence of a legal
"blockade," were formulated in elegant brevity by the British Law Officers of the Crown in 1753. They
treated prize law as a branch of the law of nations resting on the common practices of all "civilized" states.
20 BFSP (1832-1833) 889 sq., Rules of Admiralty Jurisdiction in Time of War, 18 January 1753. The rules
evolved over time as neutral interest in the profits of trade during a war between others clashed with
belligerent interests in extending the profitable interdiction of trade with the enemy during wartime. See
Scott, The Armed Neutralities of 1180 and 1800 (1918). As navies expanded and centralized control over
military activities became more important to European states, the practice of licensing privateers ceased.
Privateering was declared "abolished" as a matter of international law in 1856 with the United States the
only major state refusing to go along with the consensus; and that refusal was apparently for other reasons
than a desire to continue the practice of licensing privateers. Schindler & Toman, The Laws of Armed
Conflicts (rev'd ed. 1981) 699-702.
19. Cf. Jane Austen, Persuasion (1818) ch. 4: "Captain Wentworth had no fortune. He had been lucky in
his profession; but spending freely, had realized nothing. But he was confident that he should be rich: full of
life and ardour, he knew that he should soon have a ship, and soon be on a station that would lead to
everything he wanted." (Modern Library ed., no date, p. 1225).
20. The British navy at this period was manned by laying a manpower requirement on port towns and
letting them enforce it by impressment. See for sample statutes 35 Geo. Ill c. 5, c. 19, c. 29 (1795). The
practical impact of this method of recruitment during wartime is vividly described in Dugan, The Great
Mutiny (1965, Signet ed. 1967) 63-65. Dugan 's book brilliantly and clearly analyzes the British naval mutiny
of 1797 at the Nore — the incident that inspired Herman Melville's great novella, Billy Budd. Melville
278 The Law of Piracy
himself served as a seaman on the U.S. frigate United States in 1843 and in semi-fictionalized version
described his experiences in the novel White Jacket (1849).
21. 43 Geo. Ill c. 160 (1803), 44 Pickering 1020-1057.
22. Id. 1037.
23. 45 Geo. Ill c. 72 (1805), 45(2) Pickering 1041 at p. 1045.
24. 6 Geo. IV c. 49 (1825), 65 Pickering 230. This statute is reproduced at Appendix I.C below. It is
noteworthy that it did not apply to British privateers. Apparently privateering licenses to suppress
"piracy" were not being issued any longer.
25. Id. sec. Ill, pp. 231-232.
26. See note 1-61 and text at notes 11-48 sq. above.
27. 1 J. G. Lorimer, Gazeteer of the Persian Gulf (1915) 636.
28. 58 CTS 387, "Agreement" dated 6 February 1806.
29. 70 CTS 464. "Contract" of 8 January 1820. For the Arabic language translation I am indebted to Dr.
Guive Mirfendereski whose researches into the history of the Persian Gulf were made available to me for
purposes of this study. I am greatly in his debt.
30. Deeper researches into the precise relationships among the Sheikhdoms, and between any of them
and the English, at this period have been conducted by Dr. Mirfendereski, whose 1985 Ph.D. Dissertation,
The Tamb Islands Controversy, 1887-1971, is on file at The Fletcher School of Law and Diplomacy, Tufts
University.
31. See note 1-35 above.
32. 70 CTS 464-465.
33. This British practice of concluding a "preliminary treaty" fixing relations in the interim between
the decision of the British to open formal relations with a non-European society and the conclusion of a
more formal document led in some cases to serious difficulties, as local British officials tried to pick and
choose among the terms of the "preliminary treaty" and the final document prior to ratification those
terms most favorable to their policies, and then claim the other side was bound to the preliminary treaty
despite its ephemeral place in the negotiation and the fact that the British themselves in some cases
regarded the "preliminary treaty" as being superseded by the new document even before ratification. For
an example analyzed in some detail, see Rubin, International Personality of the Malay Peninsula (1974) 205-230,
regarding the "preliminary treaty" of 1825 and the final treaty of 1826 between the British and Thailand.
34. 70 CTS 472-476, 482.
35. 70 CTS 482, Article 1.
36. Id. 475. The word "attached" appearing twice in the text seems to refer to "attachment" as if part of
the law of maritime prize. It looks like a legalistic pomposity perpetrated by a non-lawyer negotiating
beyond his expertise.
37. 70 CTS 466. Precisely what lay behind the unwillingness or inability of the Sheikh to produce his seal
is not clear, nor is the basis for Captain Thompson's legal power to use his own seal in its place. One of the
Sheikhs sealed both a "preliminary treaty" and the final "contract" on 8 January 1820; two others sealed
the final "contract" a few weeks after sealing a "preliminary treaty"; three more sealed a "preliminary
treaty" and the "contract" on the same day some time after 8 January 1820; three sealed the final
"contract" without ever concluding a recorded "preliminary treaty." Thus, precisely what the
relationship between the "preliminary treaties" and the "contract" was intended to be seems obscure as a
matter of law.
38. Whilom extensive British claims to sovereignty over the seas were quietly abandoned by the British
during the eighteenth century. See Fulton, The Sovereignty of the Sea (191 1)523-527, 538. The adoption of the
three-mile limit came about in Great Britain through judicial pronouncement in Prize court actions
relating to the extent seaward of "neutral" waters within which a belligerent capture would be
impermissable by the law of Prize. Id. 576 sq. The leading case is The Twee Gebroeders, 3 C. Rob. 336 (1801),
opinion by Sir William Scott.
39. See above at note III— 1 10.
40. 70 CTS 471-476, 481-482.
41. A convenient historical survey is Ilbert, The Government of India (1922). A full list of even only the
essential primary sources would be too complex for purposes of this study. The transition from a private
company to an arm of the British government with restricted powers and a complex constitutional
relationship to the other arms of government in London involves an understanding of the legal and
historical context for Townshend's Act of 1767, 7 Geo. Ill c. 57; North's Regulating Act of 1773, 13 Geo. Ill
c. 63; Pitt's Act of 1784, 24 Geo. Ill c. 25; the Independent Powers of Governors Act of 1793, 33 Geo. Ill c.
32; the East India Company Act of 1813, 53 Geo. Ill c. 155; and the East India Company Act of 1833, 3 & 4
Will. IV c. 85.
42. The most elaborate recent analysis of this is Alexandrowicz, An Introduction to the History of the Law of
Nations in the East Indies (1967) passim, esp. p. 26-38.
43. 11 & 12 Will. Ill c. 7 (1700), in Appendix LB below.
British 19th Century Practice 279
44. See text at notes 1-57 sq. above.
45. See text at notes 1-2 to 1-3 above. Raffles was surely not the only main-line employee of the East
India Company familiar with the Latin classics.
46. F.O. 72/142, No. 1, Instruction from Castlereagh to the Duke of Wellington in Madrid and
Ambassador Stuart in Paris, dated 8 January 1813, reproduced in 1 H.A. Smith, Great Britain and the Law of
Nations (1932) 35.
47. This inconsistency is noted by Smith. Id.
48. See text at notes 1-107, 1-120, 1-194 sq., citing Gentili, Pleas of a Spanish Advocate (1613), andSoutherne
v. Howe, 2 Rolle 5 (1617), for situations in which English jurists regarded the Barbary powers as fully
independent for purposes of English law, including the law relating to "piracy." Whatever doubts might
have revived about the legal power of the rulers of the Barbary states to change title to vessels and goods
through the local equivalent of Prize court proceedings were removed for purposes of English maritime
property law by the decision of Sir William Scott in The Helena (1801), cited note 9 above. Thus, by 1801,
Algiers had been held to have a government with the normal powers of a government of a "state" in the
international legal order to change title to vessels, at least as far as English law was concerned.
49. See Fisher, op. cit. note 1-76 above for a useful review of the relations between the Barbary states and
the Ottoman Emperor (the Sublime Porte) 1415-1830, concentrating on the 17th and 18th centuries. See
also Moessner, Die Voelkerrechtspersoenlichkeit unddie Voelkerrechtspraxis der Barbareskenstaaten (1968) passim for
a comprehensive review of the European classifications of the Barbary states 1518-1830. Moessner seems to
give rather more weight to the views of some European publicists than seems warranted by the
jurisprudential analysis given in ch. II, esp. text at notes 11-139 sq. above. An incisive analysis in the light of
further thought and research is Moessner, The Barbary Powers in International Law, in Alexandrowicz,
ed., Grotian Society Papers 1972 197 esp. pp. 207-215 (1972).
50. F.O. 8/3, quoted in Smith, op. cit. 36.
51. Id.
52. The text of the pertinent Protocol is at 2 BFSP (1814-1815) 744. The correspondence concerning
Exmouth's expedition is at 3 id. (1815-1816) 509-552.
53. 3 Id. 517.
54. See The Helena, cited at note 9 above.
55. The Dey 's surrender is reproduced in 81 CTS 53. Shortly afterwards, France concluded treaties with
Tunis (8 August 1830, 81 CTS 99) and Tripoli (11 August 1830, 81 CTS 147), bringing those "states,"
without the consent of the Sublime Porte, into French legal control. French authority in Morocco was
established soon after. See Case of the Tunis-Morocco Nationality Decrees, P.C.I.J., Ser. B, No. 4 (1923),
for an Advisory Opinion by the League of Nations' judicial arm as to whether nationality laws of those
Barbary states, by then under the regime of French Imperial law, raised questions of international law
when they affected British nationals resident there. To trace the evolution of the Barbary states, via French
(and, in the case of Libya, Italian) "protection" to independence again after the Second World War is
beyond the scope of this study.
56. 8 BFSP (1820-1821) 1282-1283.
57. Id. 1283-1285.
58. 1 Smith, op. cit. 282-283.
59. 8 BFSP 1283.
60. See 1 Smith, op. cit., 282 note 1. Oakes & Mowat, The Great European Treaties of the Nineteenth Century
(1918, 1970) 105 note 1, refers to a British Proclamation of Neutrality on 30 September 1825 under the
Foreign Enlistment Act of 1819, 59 Geo. Ill c. 69. That Proclamation appears in 12 BFSP (1824-1825) 525
wrongly citing the Act 59 Geo. Ill c. 63; the correct Act is reprinted as c. 69 in 6 BFSP (1818-1819) 130.
There was a vaguely worded Proclamation of Neutrality in the "hostilities . . . between different states and
countries in Europe and America" on 6June 1823. 1 Smith, op. cit. 288; 10 BFSP (1822-1823) 648. The British
interpretation of the obligations of neutrality as they related to the belligerent law of Prize at this time,
expressly referred to as part of the "Law of Nations" reflecting an underlying general international law
under the terminology of the period, is set out in the Opinion of the Law Officers of the Crown dated 18
January 1753 (cited at note 18 above). As to the technical meaning of the phrase "Law of Nations" at that
time, see ch. II. above.
61 . The precise reasons in law for this request are not clear; nor, as shall be seen, was the answer. It is not
self-evident that governmental permission was necessary at that time for a private firm to engage in
foreign trade even in arms, when there was no state of war, no formal proclamation of neutrality and no
embargo order in effect.
62. Robert Banks Jenkinson, 2nd Earl of Liverpool, was Prime Minister (or, more properly at the time,
Chief of Cabinet) in the Tory Government 1812-1827.
63. F.O. 78/106 dated 27 September 1821, reproduced in 1 Smith, op. cit. 283-284. It is unlikely that
Liverpool could constitutionally have forbidden it without formal governmental action even if he had
wished to.
280 The Law of Piracy
64. F.O. 83/2385 quoted in 1 Smith, op. cit. 284-285. The first sentence only of this opinion appears in 1
McNair, International Law Opinions (1956) 267.
65. 9 BFSP (1821-1822) 620.
66. Id. 798; 1 Smith, op. cit. 285.
67. 1 Smith, op. cit. 286-288. Smith construes a Navy instruction to Vice-Admiral Sir Graham Moore,
apparently concurred in by the Foreign Office, as "in substance ... a recognition of belligerency, though
no formal announcement to that effect was made." Id. 288 citing Ad. 2/1693, No. 10.
68. Id. 291.
69. Id. 293.
70. Id. 292-293.
71 . Id. It would be amusing, if it were not so confusing, that policy-makers seeking to use the law, and
lawyers seeking to influence policy outside the proper sphere of a lawyer's expertise, use the term "dejure"
to refer to a labeling system based on policy in disregard of law and fact, while lawyers operating within
the proper sphere of their expertise and policy-makers grappling with reality as they eventually must,
draw their conclusions from labels affixed "de facto. " It is mysterious that a reference to "law" is used to
justify a departure from reality and refer to a system of labels affixed for non-legal reasons of policy, while
a reference to "fact" is universally used when responsible lawyers and judges sit down to decide real cases
by applying the law, and counsel clients concerned with reality.
72. Cited note 60 above.
73. 1 Smith, op. cit. 293.
74. Id. 290.
75. See Nicolson, The Congress of Vienna (1946, Compass Books ed. 1961) 268-269; 6 Moore, Digest
374-379, 407-408. A full exposition of the views of Prince Metternich and the evolution of the Holy
Alliance is beyond the scope of this study.
76. F.O. 7/181, No. 34, reprinted in 1 Smith, op. cit. 294-297. The quoted portion is on page 296.
Wellesley's biography is in 20 DNB 1116-1117.
77. NRS, Piracy in the Levant, 1827-8; Selected from the Papers of Admiral Sir Edward Codrington, K.C.B.
(hereafter cited as Codrington Papers) (1934) (Volume 72 of the Navy Records Society Series) xviii-xix.
78. Pertinent text is set out at note 24 above and in Appendix I.C.
79. Parliamentary Papers 1825 XXVI, p. 66, cited in 70 CTS 463.
80. As noted above, the statute of 1825 was made retroactive to 1 January 1820. The publication of the
"Contract" of 1825 by Parliament seems to have been part of the justification for this retroactivity.
81. Codrington Papers 60-61. The identity of the Greek "Naval Islands" is not clear.
82. Id. 48, letter dated 9 January 1827. "Trabaccolo" is the local word for a small ship; the word is
Italian.
83. Id. 48-52. The chase after Suitto continued at sea, unsuccessfully. Id. 114-117. Why the Greek
authorities should have been concerned about the British capture of a Turkish vessel is not clear. Moreover,
in the official list of Greek "pirates" prepared by the British in 1828, the names of Nicolo Suitto and Nicolo
Coccocci do not appear. Id. 281-290.
84. Id. 67-70. The list of 152 plundered vessels compiled by the British in 1828 oddly enough does not
include any French ship, but does include Russian, English, Austrian, Ionian, Tuscan, Maltese and Sardinian
vessels. It also regards one shore raid as "piratical." Id. 281-290.
85. Id. 104, letter from Sir Frederick Hankey, Chief Secretary to the [British] Government of Malta, to
Admiral Codrington dated 8 May 1827. The letter begins on p. 103. Captain Mussu's name is also not on the
list of "pirates" in id. 281-290. Malta had been governed by a Crusading Order until taken over by France in
1798. It was captured by the British in 1800 and governed by them until independence in 1964.
86. Id. 104.
87. Id. 219.
88. Id. 225, letter dated 19 October 1827.
89. Id. 238-239.
90. Id. 246-248.
91. Id. 257. The Report begins on p. 256.
92. Id.
93. See text at notes 111-40 and 111-41 above, quoting from 1 AG 48-49 (1841 ed.), opinion dated 14
March 1798.
94. In U.S. v. Pedro Gilbert & Others, 2 Sumner 19 (1834), quoted in the text above at note 111-70.
95. Cp. text at notes 1-80 to 1-85, 1-130 above.
96. 5 S. Purchas, Hakluytus Postumus or Purchas His Pilgrims (1625) (Glasgow, 1905-1907) 221.
97. 2 Dampier, A New Voyage Round the World (1717), in Masefield, ed., Dampier's Voyages 1700-1726
(1906) 88.
98. See Rubin, International Personality 102.
99. Anderson, Acheen and the Ports on the North and East Coast of Sumatra . . . (1840) 34-36, 37 note.
100. Id. p. 47 note.
British 19th Century Practice 281
101 . Id. 45; Low, An Account of the Origin and Progress of the British Colonies in the Straits of Malacca,
4 Journal of the Indian Archipelago (Logan's Journal) (hereafter JI A) 11 at p. 17 (1850); Cowan, Early Penang
and the Rise of Singapore, 1805-1832, 23(2)Joumal of the Royal Asian Society, Malayan Branch (JRASMB) 1 at p.
49-51 (1945).
102. Anderson, op. cit. 51-52, 56-58; Low, op. cit. 17-18; 1 Kyshe, Cases . . . Straits Settlements, 1808-1884
(1885) xliv, xlvii.
103. Anderson, op. cit. 79-80.
104. Id. 72-73.
105. Id. 73.
106. 24 Geo. Ill c. 25 [usually called Pitt's India Act], art. 35. The history of British imperial expansion
and its legal mechanisms are beyond the scope of this study. A handy collection of selected documents is
Muir, The Making of British India (1917). A more or less standard secondary analysis is Ilbert, The Government
of India (1922). See note 41 above.
107. See text at notes 1-2 and 1-3 above.
108. Letter dated 22 January 1819 from the Secretary of the Government of Prince of Wales' Island to the
Chief Secretary of the Government of Fort William (in India), reproduced in Cowan, Early Penang and the
Rise of Singapore, 1805-1832, cited note 101 above, 88-89. Permission was in fact given to annex Pangkor,
but the British were unable to find a Malay Sultan who had both a politically and legally supportable claim
to sovereignty and a willingness to cede that sovereignty. Cowan, Governor Bannerman and the Penang
Tin Scheme, 23(l)JRASMB 52 (1945) at 63, 72-73, 76-78. The situation is summarized in Rubin, International
Personality 187-188.
109. Miller, Extracts from the Letters of Col. Nahuijs, 19(2) JRASMB 169 (1941), at 192 letter dated 10
June 1824. It has been impossible to find the original Dutch language version of this letter.
110. See Marks, The First Contest for Singapore: 1819-1824 (1959) for a meticulous analysis of the legal
arguments raised during Anglo-Dutch negotiations in Europe concerning sovereignty over Singapore.
111. Id. 252; 11 BFSP (1823-1824) 194; 74 CTS 87.
112. Id. article 5. The evolution of the Dutch word "Zeeroof" and its technical legal usages, if any, seem
beyond the scope of reasonable research for purposes of this study. Bynkershoek wrote his major legal
works in Latin, not Dutch. To check the Dutch translations of the major European writers and the
historical development of Dutch statute law seems excessive. It is not known what word Nahuijs used that
Miller translated "pirates" in the extract at note 109 above.
113. The word is chosen deliberately. The similarities of the British view of their legal powers in
Southeast Asia and the Roman view of their legal powers in the Eastern Mediterranean are strikingly
apparent. (See note 1-35 above). The British began to call their position "Paramountcy " and derive special
legal authority from that word at this time. See British Parliamentary Papers, Cmd. 3302, Report of the Indian
States Committee, 1928-1929 passim, esp. paras. 20-21 at p. 14-15, for a British analysis of "paramountcy"
from 1804 onwards. The position taken is argumentative in favor of British legal rights in India, but
scholarly in its use of source materials.
114. 76 CTS 445 at p. 446. Under the Act of 1784 and other legal arrangements, the British colonies in
Southeast Asia, including Penang, were governed in the name of the East India Company.
115. Id. 449-450, fourth article.
116. Low, responding on 17 August 1827, to allegations of wrong-doing in the raid on 17 August 1827,
wrote that "Oodin's" evil reputation was substantiated by police records in Penang and that a freed slave
had testified that he, Udin, had been behind kidnappings in Penang Island itself. 2(6) Burney Papers 225 at p.
233-235.
117. Low, Account, 4 JIA at 116-117 (1850).
118. Lord Amherst to Fullerton, The Governor of Penang, in Council, 23 July 1827, 2(6) Burney Papers 205
at p. 213-214.
119. Id., Lov/'s Report cited note 116 above at 232.
120. Id. 245 at 250.
121. Id. at 249.
122. Op. cit. note 118, p. 207 (cutting the military budget), 212 (disapproving the acquisition of the
Islands); these portions of the Supreme Government's letter of 23 July 1827 were not rescinded when
retroactive approval was given to Low's raids.
123. Id. 277-279.
124. Admiralty jurisdiction was not given to the British courts in the area until 25 February 1837. 1
Kyshe lxxix. Until that time such cases as had arisen there that required referral to a British Admiralty
court were sent to Calcutta for adjudication. See R. v. Noquedah Allong & ors., 2 Kyshe (Cr.) 3 (1811). In
one case, a robbery on a navigable river in Province Wellesley was held to be within the court's Common
Law criminal jurisdiction despite it being clearly within the traditional Admiralty jurisdiction. On referral
to Madras and eventually Calcutta, the Penang convictions were upheld. R. v. Lebby Lundoo & Anor., 2
Kyshe (Cr.) 6 (1813) esp. p. 12.
125. See text at notes II-4 sq. above.
282 The Law of Piracy
126. The Thai position legally was quite closely analogous to the British position regarding
Paramountcy. The British had agreed to the Thai pretentions in a treaty negotiated in Bangkok in 1826, 14
C.U. Aitchison, Treaties, Engagements and Sanaa's . . . (Calcutta 1929) 115 and undertook to prevent British
territory being used for Malay political activity against the Thai regime in Kedah. The tale is too
complicated for concise summary. See Rubin, Piracy, Paramountcy and Protectorates (1974) 1-34.
127. 3(1) Burney Papers 309 , Ibbetson to the Chief Secretary to the Supreme Government, despatch dated
25 April 1832.
128. Id. 317, letter from Bonham to Ibbetson dated 9 August 1832; 319, Ibbetson 's reply dated 28 August
1832.
129. 3(2) Id. AAA, Report by Governor Bonham to Mr. Prinsep, Chief Secretary to the Supreme
Government in India dated 30 July 1838, at p. 446.
130. Id. 473, letter from the Chao Phya Pra Klang in Bangkok to Bonham dated 24 June 1838, at p. 475.
131. The Thai word translated "pirates" is not known, nor the legal implications of that word. The
intention to use the British conception of "pirates" as the "common enemies of mankind" and thus to bring
the British into the dynastic struggle as a party against the rebels seems clear.
132. Cf. Osborn, . . . The Blockade ofQuedah (2d ed. 1860) p. 22:
[AJlthough many of the leaders were known and avowed pirates, still the strong European
party at Penang maintained that they were lawful belligerents battling to regain their own.
The East India Company and Lord Aukland, then Governor-General of India, took
however an adverse view of the Malay claim to Quedah, and declared them pirates, though
upon what grounds no one seemed very well able to show.
133. The full tale is much more complex than can be fully retailed here. I have tried to set out a more
complete summary in Rubin, Piracy, Paramountcy and Protectorates (1974) 22-30, and the interested reader is
encouraged to read for himself the primary documents cited there.
134. Regina v. Tunkoo Mohamed Saad and ors. (1840) 2 Kyshe (Cr.) 18; photographically reproduced in
1 Parry & Hopkins, eds., Commonwealth International Law Cases 31.
135. Thi